National Cancer Plan

Debate between Andrew Gwynne and Caroline Johnson

Tuesday 4th February 2025 Commons Chamber

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

I thank the Minister for advance sight of his statement, and I thank all the NHS workers, charities, scientists and others working to help those with cancer.

We can all agree that tackling cancer should be a top priority for the NHS. From diagnosing people quickly to starting treatment quickly and using the latest technology and drugs, we all want to see improvements. The recent trends in cancer survival rates are positive. The one-year survival rate for cancer increased by 5.9% between 2010 and 2020, and the five-year survival rate increased by 4.3% in the same period. Despite those improvements, we are not yet where we want to be, and we will be up front about that.

In government, we took action to catch cancer sooner and boost survival rates, with initiatives such as lung cancer screening and prostate cancer trials, and we welcome that Labour is continuing with that mission. We will work constructively with the Government on that, as we all want to achieve the same positive outcomes. However, the statement as a whole is rather disappointing. The Minister has told us that this is a cancer plan, but it is not; it is a statement that there is to be one. The Government saying that they want cancer survival rates to increase and that they are going to have a plan does not make it so—we need the plan itself.

The announcement of the AI trial in breast cancer is a welcome approach. Artificial intelligence has the capacity to revolutionise the way we diagnose disease, and I am delighted that the Government wish to explore those opportunities. We also very much welcome the relaunch of the children and young people’s cancer taskforce, and are pleased it will be able to continue its valuable work under the co-chairmanship of my hon. Friend the Member for Gosport (Dame Caroline Dinenage) and Professor Darren Hargrave. It is just a shame that the Labour Government wasted seven months by suspending the Conservative taskforce, only to reinstate it now.

I note the Minister’s comments about waiting times to start treatment, and we agree that these must improve. I am sure it will not have escaped his notice that NHS Wales, which has been under a Labour Administration for 25 years, has a poorer performance, and I am certain he would not want party politics to affect such an issue. Can he tell the House what conversations he is having with his Welsh counterparts to improve cancer care there?

I am also concerned that last month, the Government appeared to quietly abandon the target of ensuring that patients receive treatment a maximum of 62 days from an urgent referral of suspected cancer, despite the Health Secretary having said before the election that a Labour Government would meet that target within the first term. Will the Minister clarify his commitment to the 62-day target?

More scanners are, of course, welcome, but what are the Government doing to ensure that there are enough trained professionals to interpret the results of the scans effectively?

With charities such as Macmillan and Marie Curie being hit with devastating increases in national insurance contributions, what help will be provided so that they do not have to cut back the vital support and guidance services they provide to cancer patients?

Anyone who has faced cancer will know that time is of the essence. The second half of the year—if it is not until December—could be quite a long time from now. Will the Minister therefore be more clear about when he intends to publish the plan? May I recommend using the evidence collected in our 2022 call for evidence, as well as the policies of the interim major conditions strategy, published in 2023, to speed up the plan? The quicker the Government act, the more lives they will be able to save.

[Andrew Gwynne]

I start by genuinely thanking the shadow Minister for the co-operation she has pledged as we seek to improve the outcomes for people with cancer. This is not a party political issue. We all want people to be diagnosed more quickly and to be put on the effective treatment pathways as quickly as possible, and we all want people to have better outcomes. I would just remind her, however, that while progress was made over the past decade, as I referred to in the statement, Lord Darzi clearly set out that the rate of progress was much slower than in comparator countries, and that we could and should have been on a much better trajectory.

That is why we are committed to a new national cancer plan—something for which the sector has been calling for some time. We are going to consult on that plan. I hope the shadow Minister is not suggesting that we should just pull a plan out of thin air without any consultation with the sector, patients or anybody with any interest in cancer.

Of course, things have changed over recent years. New technology has advanced and scientific progress is advancing, although there are still some areas where, stubbornly, there is not enough research. We need to build up the case for research and get the funding in; I think especially of brain tumours, where, quite frankly, things have not progressed at all. We need to ensure that in the 10-year cancer plan, we really drive forward in some of those areas, using the latest technology and scientific advances.

The shadow Minister asked about targets. I just say to her that we have actually strengthened targets, rather than setting new ones for cancer. Currently, the NHS is on track to deliver against its cancer targets for this year. Yes, we should be ambitious where we can, and that is exactly what this Labour Government are going to do.

Draft Medicines for Human Use (Clinical Trials) (Amendment) Regulations 2024

Debate between Andrew Gwynne and Caroline Johnson

Monday 3rd February 2025 General Committees

[Andrew Gwynne]

I thank the shadow Minister for her support for this piece of secondary legislation, which marks the most substantial update to UK clinical trial regulations in more than two decades. This is an important step forward to deliver a more efficient and adaptable regulatory framework, all while ensuring the safety of the trial participants. The reforms will deliver a proportionate, flexible and efficient clinical research environment, with patients at the very heart of the process.

The shadow Minister raised the issue of AstraZeneca and the support for life sciences in the UK. Without straying too much from the measures before us, Sir Desmond, I want to reassure the Committee that this Government are fully committed to supporting the UK’s life sciences sector. Today we have heard about how vital clinical trials are in driving the health and wealth of the UK. The sector has experienced strong growth in recent years; between 2022 and 2023, the number of UK industry-led clinical trials increased by 3.7%. The UK has also gone up in the global rankings for phase 2 trials, moving from sixth to fourth place.

That progress is a testament to our thriving research ecosystem, something that was developed under the previous Government and that we want to build on, which is what this set of regulations is all about. They are about making sure that our country is at the cutting edge of the latest developments in medical science and that British patients are able to access those treatments as early as possible, through clinical trials and then through the early adoption of those medicines once they are brought to market.

The shadow Minister asked about the de minimis assessment. An assessment of the updated legislation has been produced, which estimates that there will be a total transition cost of approximately £720,000 to business for organisations to familiarise themselves with and operationalise the changes. It is expected that the annual total benefit to businesses will be £1 million, primarily due to the changes in the approval processes. I sought to correct the record in my opening remarks because it had originally been anticipated that we would need to have the full assessment, but on closer scrutiny that is not necessary because of the reasons that I have just set out.

[Dr Johnson]

When the Minister talks about £1 million, is that the benefit to businesses in the current level of trials? Or is that his estimate of the rise in the number of trials as a result of the changes?

Tobacco and Vapes Bill (Fifteenth sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Thursday 30th January 2025 Public Bill Committees

[Dr Johnson]

We are talking about something that will be illegal in the United Kingdom and how United Kingdom law is enforced. My question relates to how people might behave in other countries’ waters on the basis of local laws. The question is, if this is a law that we are bringing in to apply to British ships, how will the Government expect it to apply when the British ship is not in a British port or in British waters, but perhaps in international or foreign waters? It could lead to difficulties in compliance and potential jurisdictional conflicts where the local laws do not agree. If the ship is operating in another nation’s territorial waters, that country might have its own laws on vaping or smoking. Which law prevails? Another question is when trying to enforce a ban when transporting humanitarian aid or refugees, in that the people who are being picked up might not realise that there is a ban. How would that be enforced in such circumstances?

Some people might ask whether the extent of the regulations for vaping and heated-tobacco devices is too inflexible? Such devices do not pose the same fire risks as cigarettes or pipes, although they are not without risk. Modern Royal Navy deployments, as I understand them, can typically last six to nine months, and vaping is used when smokers are trying to quit as a cessation tool. What discussions has the Minister had about the health of our military personnel deployed for such periods of time? How will he ensure access to nicotine replacement therapy and smoking cessation services so that we are not leaving people without access to what would, for them as an adult, be a legal product?

[The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)]

It is a pleasure to see you back in the Chair, Mr Pritchard. There is light at the end of the tunnel: today is the day that we will have a Bill in one shape or another, having reached the end of Committee stage and deliberated everything; and if not, of course everything that has not been debated gets accepted anyway, so we will have a Bill.

The clause amends an existing regulation-making power in section 85 of the Merchant Shipping Act 1995, so that any safety regulations—this is what we are talking about here. Health and safety regulations in merchant shipping that are made under section 85 provide for heated tobacco and vape-free provision for ships, which will correspond with the provisions in the Health Act 2006.

The shadow Minister, the hon. Member for Sleaford and North Hykeham, put a couple of questions. We have the power to make provision about health and safety in the merchant shipping sector already, under the 1995 Act. Those powers are already there, are already being implemented and are already being enforced. All that this measure will do is extend the provision to vapes and heated-tobacco devices, to bring it into line with everything else we have done over our debates.

The matter is one for the Department for Transport. It owns this policy, and health and safety in merchant shipping. We will continue to work with the Department for Transport as we consider any future regulations to create additional smoke-free places, but it is for the Department for Transport to implement and to enforce health and safety regulations in merchant shipping, as it does now. It will continue to do that, but with an extension of its powers. With that, I commend the clause to the Committee.

Question put and agreed to.

Clause 158 accordingly ordered to stand part of the Bill.

Clause 159

Application to Parliament

Question proposed, That the clause stand part of the Bill.

[Dr Johnson]

This is an interesting clause, because it applies the Bill to the parliamentary estate. According to Erskine May, there has been some confusion about whether statute law can apply inside the parliamentary estate, because of the principle of exclusive cognisance. That means that Parliament has control over its own internal matters and that not all laws automatically apply within Parliament. To quote from Erskine May directly:

“Actions in respect of which exclusive cognizance is claimed and has been admitted are not restricted to formal acts of either House. This privilege has been held to extend to the sale of intoxicating liquor within the precincts of the House, though those responsible did not hold a licence.”

Smoking, for example, has technically been prohibited in the Commons Chamber, public and Members’ Lobbies and Committee Rooms since 1694. According to Erskine May, MPs agreed

“That no Member do presume to take tobacco in the gallery of the House or at a committee table”.

Around the estate, however, historically it was the custom to smoke in the bars and the Tea Room, and in the Committee Corridor outside this very Committee Room we are in today. There are legal exceptions and exemptions that are worth discussing now.

The Office of the Parliamentary Counsel published guidance on Crown application in 2021 and noted that the Palace of Westminster is Crown land. The guidance explains the general presumption that an Act does not bind the Crown unless it does so expressly or by necessary implication. Often, an Act includes a clause on Crown application, specifying whether the Act applies to Crown land, but the Health Act 2006 does not include such a clause.

The position set out by case law is that the Health Act 2006 does not apply to the Crown, as in the 2017 case of R (on the application of Black) v. Secretary of State for Justice. In that case, the prisoner, named Mr Black, was serving an indeterminate sentence at Her Majesty’s Prison Wymott. He was a non-smoker with a number of health problems that were exacerbated by tobacco smoke—we talked about prisoners and vaping earlier. He complained that the smoking ban was not being properly enforced in the common parts of prisons, and issued proceedings for judicial review of the Secretary of State’s refusal to provide access to the NHS smoke-free compliance line to prisoners.

The Supreme Court unanimously dismissed Mr Black’s appeal, holding that Parliament must have intended the Crown to not be bound by the smoking ban, otherwise it would have made an express provision for it in the Act. In the words of Lady Hale:

“there are powerful indicators in the language of the Act itself that the Crown was not to be bound by the smoking ban.”

In 2013, the Joint Committee on Parliamentary Privilege noted that the ambiguity had led to many inconsistencies in statute law. That Committee considered that it was not practicable to resolve the inconsistencies without sweeping retrospective change, which could have unforesee- able consequences. It concluded that in the absence of legislation, the safest way forward—however undesirable it might be as a statement of principle—was to reiterate and formalise the current presumption that legislation does not apply to Parliament unless it expressly provides otherwise. That was agreed on, and now there is a rule that legislation creating individual rights that could fit with parliamentary activities must expressly say that it applies within Parliament.

Here we are today, with clause 159, which stipulates that the Bill and regulations made under it will apply to the parliamentary estate. The Bill does not replace the smoke-free provisions in the Health Act 2006 and does not otherwise provide directly for the smoke-free restrictions discussed above. There is no obvious means by which clause 159 will place the parliamentary estate within the scope of the 2006 Act. However, clause 136 enables Ministers to add to the list of places designated as smoke-free by introducing new regulations under proposed new section 4(1) of that Act. It is therefore possible for new regulations to designate the parliamentary estate as smoke-free, but I have seen no indication from the Government that they plan to do that. Clause 136 also enables Ministers to make exceptions to smoke-free legislation.

The extent to which the Bill can be used to place the parliamentary estate within the scope of smoke-free legislation is therefore a matter for legal interpretation, and I would be interested to know the Minister’s thoughts on that. Earlier in the debates that we have been having during line-by-line scrutiny of the Bill, we talked about the snuff that is kept outside the door, with the Doorkeepers, and the Minister suggested there was no reason why that could not continue, but I am interested to understand his thoughts in relation to clause 159.

--- Later in debate ---

[Andrew Gwynne]

This is a standard clause. It provides that the measures in the Bill and regulations made under it apply to the parliamentary estate. I hope that Opposition Members do not think that the parliamentary estate should be above the law that Parliament will, I hope, pass. This clause requires the parliamentary estate to adhere to the tobacco and vaping control measures under the Bill and regulations made under it, ensuring consistent application of the law. The wording of the clause was previously agreed with the Clerks of both Houses of Parliament—both the House of Commons and the other place—so that the whole of the parliamentary estate will be covered by the same laws that will apply outside the parliamentary estate. It will include, for example, the shops, to ensure that there is consistent application of the law. It appertains to the House of Commons shop, the House of Lords shop and the retail outlets on the parliamentary estate. Those regulations that apply to retailers outside the parliamentary estate will apply within the parliamentary estate.

[Dr Johnson]

Is the Minister aware of any retailers on the parliamentary estate at the moment that actually do sell any tobacco or cigarette products?

[Andrew Gwynne]

No, I am not, but the point is that the law has to apply equally within Parliament and outside of Parliament. There has to be a consistency of approach, and just because a person cannot get the House of Commons snuff from the House of Commons shop does not mean that the House of Commons shop should have a different set of regulations from any other retail outlet in the United Kingdom. Parliamentary Clerks and the Cabinet Office were consulted before the inclusion of this clause. They were content for it to be included, and that is why it is in the Bill.

--- Later in debate ---

[Dr Johnson]

I know that the Minister enjoyed grandstanding about equality, but I am not sure that he actually answered the question. Clause 160 talks about consequential amendments, and one question that I asked him about clause 159 was whether it would have the effect that he says it will. It says:

“To the extent that this Act or regulations made under it would not…apply in relation to the Parliamentary Estate, they do so apply”,

but it does not include the Health Act. As there are consequential amendments in clause 160, would there need to be a consequential amendment to the Health Act? It is that Act, as amended, that provides for the regulations in relation to smoking.

[Andrew Gwynne]

Clause 160 and schedule 21 provide further general consequential amendments relating to this Bill. The specific amendments to existing legislation are set out in the schedule. Those amendments help the provisions in the Bill to function effectively within the existing legislative framework. This is a standard supplementary clause that enables the legislation to function as intended following the Bill’s introduction.

The shadow Minister refers to different aspects of legislation. Many of the clauses that we have already debated bring together existing tobacco control legislation in one place, so the consequential powers that we are seeking through this clause will make sure that the existing legislation set out in the schedule will be amended, to ensure the smooth running of the legislation. I therefore commend the clause and schedule to the Committee.

Question put and agreed to.

Clause 160 accordingly ordered to stand part of the Bill.

Schedule 21 agreed to.

New Clause 2

Tobacco products statutory scheme: consultation

“(1) The Secretary of State must consult and report on the desirability of making a scheme with one or more of the following purposes—

(a) regulating, for the purposes of improving public health, the prices which may be charged by any producer or importer of tobacco products for the supply of any tobacco products,

(b) limiting the profits which may accrue to any producer or importer in connection with the manufacture or supply of tobacco products,

(c) providing for any producer or importer of tobacco products to pay to the Secretary of State an amount calculated by reference to sales or estimated sales of those products (whether on the basis of net prices, average selling prices or otherwise) to be used for the purposes of reducing smoking prevalence and improving public health.

(2) In this section—

‘importer’, in relation to tobacco products, and ‘tobacco products’ have the meaning as in Part 5 (see section 112),

‘producer’, in relation to tobacco products, is to be construed in accordance with the meaning of ‘production’ in Part 5 (see section 112).”—(Mary Kelly Foy.)

This new clause would require the Secretary of State for Health and Social Care to consult on proposals for regulating the prices and profits of, and to raise funds from, tobacco manufacturers and importers.

Brought up, and read the First time.

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[The Chair]

Given that the shadow Minister moved the new clause, it is for her to press or withdraw. Shadow Minister, do you want to withdraw it or press it to a vote?

[Dr Johnson]

That depends on whether the Minister can assure me that he intends to bring forward legislation under the Environment Act 2021 to deal with plastic filters.

[Andrew Gwynne]

That is way above my pay grade. It is a matter for the Department for Environment, Food and Rural Affairs, and I have already assured my hon. Friend the Member for Dartford that I will speak to ministerial colleagues in DEFRA. We are very sympathetic to the aim of the new clause, but we do not support the Bill being the mechanism to achieve it.

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[Andrew Gwynne]

I am grateful to the shadow Minister for moving the new clause tabled by my hon. Friend the Member for Newcastle upon Tyne East and Wallsend.

New clause 5 would introduce a ban on the manufacture and sale of high-strength nicotine products, with the maximum level of nicotine in a pouch set at 20 mg. Unlike nicotine vapes, there is currently no set nicotine limit for nicotine pouches; as we have heard, nicotine strengths vary from 2 mg per pouch to as high as 150 mg per pouch. There is also significant variation in these products internationally.

I am incredibly sympathetic to the arguments from the shadow Minister, from the hon. Member for South Northamptonshire and indeed from my hon. Friend the Member for Newcastle upon Tyne East and Wallsend. It is important to define the correct and safe nicotine level of a nicotine pouch. That is why we are already taking powers in the Bill that would allow the Government to limit the amount of nicotine in a pouch and to ban any other ingredient in a pouch that might be harmful.

We believe that secondary rather than primary legislation is the appropriate way to legislate on these matters, for all the reasons we have already debated. Legislation always has to be flexible enough to be amended based on new and emerging evidence. That allows the Government to set the right level of technical detail to ensure legal clarity. We will therefore consider the matter very carefully in our consultations post Royal Assent. I note that the shadow Minister referred to “if” we decide to use these regulations. Let me be very clear: these are precisely the kinds of things we will be looking at when we are moving like the clappers to get the regulations through.

In addition, nicotine pouches will be covered by all our other measures designed to reduce the appeal and accessibility of such products to children, such as powers to restrict flavours and regulate packaging, as well as those on general advertising. The shadow Minister gave an example of promotions that give out iPads in exchange for empty pouches. We clearly need to look at that specific promotion, but we are confident that it would be banned under the advertising restrictions that we have already debated and agreed to in Committee. I therefore ask her to withdraw the amendment.

[Dr Johnson]

I am grateful for the Minister’s comments. I understand that he is sympathetic. I know that he is going to go like the clappers; “going like the clappers” is apparently an RAF phrase, but I doubt that he is going as fast as a Tornado jet or a Typhoon—[Interruption.] Maybe he will: he is indicating that he might.

[Andrew Gwynne]

I reassure the shadow Minister that on some of these things I am going to go supersonic.

[Dr Johnson]

Hear, hear. However, in reality, regulations take time, and a sonic boom could damage the windows of this beautiful Palace of Westminster.

I do not know where the hon. Member for Newcastle upon Tyne East and Wallsend, who tabled new clause 5, has got the 20 mg figure, but my understanding is that 20 mg is a higher level than we would expect in a cigarette. Anything stronger than a cigarette could certainly not be considered a stop smoking device: it will just get people more addicted to nicotine than they would ever wish.

I will press the new clause to a vote, because I feel very strongly that over time we will see these pouches becoming the latest thing for children to become addicted to, despite the Minister’s best intentions.

Question put, That the clause be read a Second time.

Tobacco and Vapes Bill (Sixteenth sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Thursday 30th January 2025 Public Bill Committees

[Dr Johnson]

New clause 6 will introduce a process of consultation and scrutiny of the licensing regulations for the retail sale of tobacco products, when the relevant sections of the Tobacco and Vapes Act come into effect. New clause 6 is designed to ensure that the implementation of the licensing system is transparent and effective.

Subsection (1) lays out the following requirement:

“Within two months of the passing of this Act, the Secretary of State must publish draft regulations for the licensing of retail sale of tobacco products etc in England.”

The Secretary of State says he is working like the clappers, at supersonic speed, so I am sure that that should be more than achievable, but the new clause holds his feet to the fire on timing.

The provision is crucial because it sets a clear and reasonable timetable for the initial stage of the regulatory process. The publication of the draft regulations will provide a starting point for discussions about the rules governing the sale of tobacco, enabling relevant stake-holders, including retailers, public health experts and consumer advocacy groups, to examine responsive proposals. The two-month window allows the Secretary of State to move promptly—like the clappers—while also giving enough time for key groups to review the draft and contribute meaningfully to the conversation.

Subsection (2) further strengthens the consultation process, and it states that after the draft regulations are published, the Secretary of State must publish a call for evidence. This is an invitation for the public, industry participants and experts to provide their view on the proposed regulations. The goal of the call for evidence is to gather insights on the efficacy and suitability of the draft regulations, helping the Government to understand whether the proposals will achieve the intended outcomes and whether they are feasible in practice. Furthermore, the subsection ensures that the Business and Trade Committee will be invited to scrutinise the draft regulations, ensuring that any regulations that are developed are subject to thorough review and are held to the highest standards of accountability.

Subsection (3) requires that within six months of passing this Act, the Secretary of State must lay before both Houses of Parliament a report that responds formally to the evidence gathered through the consultation process, details the Government’s response to the feedback received and outlines any changes made to the draft regulations. In addition, the Government will address any recommendations put forward by the Business and Trade Committee in their scrutiny of the draft regulations.

The report will provide a mechanism for the Government to explain how public input and parliamentary scrutiny have influenced the final regulations, thus reinforcing the transparency and accountability of the process. The report also gives Parliament the opportunity to assess whether the Government sufficiently considered evidence before moving forward with the regulations.

Finally, subsection (4) introduces an important safeguard, and states:

“The Secretary of State may not make an order under section 168(4) bringing Sections 16 to 18 and Schedules 1 and 2 into force until the report specified in subsection (3) has been laid before both Houses of Parliament”.

This ensures that significant changes are not implemented without the proper review, approval and scrutiny of the House.

In summary, the new clause will strengthen the legislative framework of the Tobacco and Vapes Bill by ensuring the licensing regulations on the sale of tobacco products are subject to a thorough process of consultation, scrutiny and formal response. By requiring early publication, gathering public input, inviting parliamentary review and ensuring that no major changes are enacted before proper scrutiny, the new clause guarantees that the regulations will be well informed, balanced and accountable.

It will also ensure that the Minister does indeed go like the clappers, because it gives quite a tight timetable. One of my concerns, which I raised earlier in the debate, was that it would take some time for the regulations to come in. If we allow the time taken to bring in the regulations and consult to drag out, more children and adults will become addicted to these products, and that will be bad for the public health of the nation. The new clause provides a reasonable timetable to ensure the regulations are brought in swiftly, as the Minister has described.

[The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)]

It is good to be back after a short lunch break, Mr Pritchard; I trust Members are well nourished ahead of this afternoon’s sitting.

I am grateful to the shadow Minister for this set of amendments. They would require the Government to publish and consult on draft regulations relating to the licensing scheme in England, as set out in clauses 16 to 18 and schedules 1 and 2. The new clause stipulates that those regulations must be published within two months of Royal Assent of the Bill, and that a report on a mandated call for evidence, including a response to the Business and Trade Committee, must be laid before both Houses six months after Royal Assent.

I am sympathetic to the shadow Minister’s desire to move swiftly in this space. It is certainly my intention and the intention of the Government to move at pace—like the clappers, in supersonic fashion—in a whole range of areas. However, as with similar amendments relating to the registration scheme, we believe that new clause 6 would place an unreasonable and impractical constraint on Government. The reality is that to publish the regulations within two months of Royal Assent is simply not feasible, and the new clause does not reflect the processes and stages required for the development of proportionate, appropriate and well-considered regulations.

Development of secondary legislation takes time, and the arbitrary timescales proposed would not enable effective policy development. Forcing the Government to proceed with producing new legislation at the pace that the shadow Minister seeks to stipulate would open the Government up to the risk of creating flawed policy. Creating flawed policy carries clear risks, not least the potential for the Government’s work to be legally challenged, thereby delaying measures either for a further period of time or indeed for good.

The Bill imposes on the Secretary of State a statutory obligation to consult ahead of the introduction of any regulations. Through that process, we will be able to carefully consider views from stakeholders, including the retail sector, in order to build a licensing scheme that supports legitimate businesses while cracking down on rogue retailers.

Finally, to echo points that I have already made, the Bill has been developed in collaboration with colleagues across the United Kingdom, and such close working and close alignment will continue through the development of all secondary legislation. My concern about new clause 6 is that it risks creating inconsistencies with licensing regimes elsewhere, particularly in Wales and Northern Ireland. We are approaching this together, and that is why I ask the shadow Minister to withdraw the new clause.

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[Dr Caroline Johnson]

We have learned from the Minister that terms such as “like the clappers”, “quickly”, “in due course” and “soon” all mean a timescale longer than publishing a draft within two months and the final version within six. In practice, that means the concerns I have expressed about the Bill are true. This will take a long time, and the Minister’s “soon” is not really soon enough.

I understand the Minister’s concern that if he does not get the work done in time, it will cause the Government problems, but the answer to that is simply to get the work done in sufficient time. The Minister has been clear all along that this is an urgent public health measure. Two thirds of the people who get addicted will die as a result of the tobacco they are consuming. Not to agree that he must produce draft regulations within two months, when he knows much of what the consultation will say—indeed, the previous Government consulted on much of it anyway—is to say that the Government will move slowly and not like the clappers at all.

I understand that he is concerned about inconsistency between the nations, but he has not expressed such concern before. In fact, throughout our debate, when we have discussed the nations, we have spoken repeatedly about respecting devolution and the ability of other nations to go at different paces, do different things in different ways, and impose different fines and other penalties.

[Andrew Gwynne]

I am not sure whether it is because of selective amnesia, or whether the shadow Minister has had a really good lunch, but she seems to have entirely forgotten our previous debates. We have debated the licensing regime at length, and I made it perfectly clear to the whole Committee that Scotland is doing its own thing because it believes that that works well for Scotland, but that England, Wales and Northern Ireland would be moving in lockstep on this. If she was not aware then, she should be now.

[Dr Caroline Johnson]

I thank the Minister for making my point, which is that some parts of the United Kingdom are choosing to do this in a different way.

[Andrew Gwynne]

We are doing this together.

[Dr Johnson]

But there is nothing to stop the Union doing it together. In the event that England chose to do things at a particular pace, as it has a right to do, the Scots have already chosen to do things differently, as is their right, and the Welsh and the Northern Irish could then choose to do things at the same pace—the same appropriately quick, or reasonable, pace—or they could decide that they want to go more slowly. That would be up to them. What is in the Minister’s control is to decide that he is prepared to act at a suitable pace to ensure that these regulations come into force as properly and as quickly as possible, including with scrutiny from the House.

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[Dr Johnson]

The only thing that would inhibit the Government is not getting the work done in time—if they did not hand their homework in on time. We have all been at school and we know that if we do not hand our homework in on time, it causes us trouble. The simple fact is that the purpose of the clause is to get the Government to do their work in an appropriate time frame. So that is the point—we do not want to create a whole load of capacity in this legislation for the Government to do stuff only for them to put it on the back burner because they are too busy, do not have the time and do not see it as a priority. Legislating to have the power to do things and doing them are not the same thing. The purpose of this new clause is to make sure that the Government get them done.

[Andrew Gwynne]

I am grateful to the shadow Minister for her new clause 7. It would require the Government to publish and consult on draft regulations relating to the registration and information requirements set out in clauses 95 and 98. It stipulates that these regulations must be published within two months of Royal Assent of the Bill, and that a report on a mandated call for evidence, including the response to the House of Commons Business and Trade Committee, must be laid before both Houses six months after Royal Assent.

Again, I am sympathetic to the shadow Minister’s desire to move swiftly in this space, but as with her similar proposals relating to licensing, this new clause would place an unreasonable and impractical constraint on the Government. To draft and publish these regulations within two months of Royal Assent is simply not feasible, and the new clause does not reflect the required processes and stages for the development of proportionate, appropriate and well-considered regulations. Development of secondary legislation takes time, and the arbitrary timescales proposed would not enable effective policy development.

The Bill imposes on the Secretary of State a statutory obligation to consult on the appropriate parties ahead of introducing any regulations on this issue. Through this process, we will be able to carefully consider views relating to the existing notification schemes for tobacco products and nicotine vapes, as well as to get views on how a future registration scheme might work, and, importantly, use that input to shape and draft the required regulations. Forcing the Government to proceed hastily with producing new legislation opens up the risk of creating flawed policy. Creating flawed policy creates clear risks, not least the potential for the Government’s work to be legally challenged. I know that that is not what the shadow Minister wants, so I therefore ask her not to push her new clause to a vote.

[Dr Johnson]

I think it is inevitable that much of this will be legally challenged, because the effect of the legislation is to hamper severely an industry that has a lot of money. They are going to challenge every dot and comma of it—I am quite sure of that. The purpose, however, of this new clause is to get the Government to move at speed. The Government have been in power for more than six months now, so they cannot say that they are not capable of producing draft guidelines for regulations within six months of the date of Royal Assent, which is many weeks from now, given that they have managed to publish the Employment Rights Bill, the Renters’ Rights Bill, the Finance Bill and various other things. I do not understand why the Minister is not keener to get these things done.

I will therefore push the new clause to a vote. Yes, the Minister could get himself in trouble if he did not work quick enough, but I have every confidence that if this new clause were enacted, the Minister would—like the clappers, at supersonic speed—be more than capable. I have every confidence that the Minister is more than capable of drafting regulations within the time available if he is forced to do so.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Dr Johnson]

I beg to move, That the clause be read a Second time.

New clause 8 is designed to require the Government to produce annual reports detailing the scale of the illegal sale and availability of tobacco and vaping products. Subsection (1) would mandate the Secretary of State to prepare reports on the scale of illegal tobacco and vaping products in the UK. The reports would focus on providing a detailed overview of the prevalence and impact of illegal, counterfeit and contraband products in the market. Subsection (1) would also require the Secretary of State to lay a copy of each report before the Houses of Parliament, ensuring transparency and parliamentary oversight.

Subsection (2) outlines the specific information that each report would have to include. It stipulates that the reports would have to cover the estimated amount and value of illegal, counterfeit and contraband cigarettes and other tobacco products available for sale in the UK; the estimated amount and value of illegal or non-compliant vapes available for sale; a breakdown of the actions taken by the Government and relevant authorities to tackle the illicit sale of tobacco, tobacco products, vaping devices and vaping products; and an assessment of the impact that the illicit trade of tobacco, vapes and nicotine products had been having on public health and safety. That is crucial to understanding not just the scale of the problem, but the broader implications for public health.

Subsection (3) sets out a requirement for the first report to be laid before both Houses of Parliament within 12 months of the passing of the Act. That would ensure that the Government addressed the issue of illegal tobacco and vaping products promptly after the Bill was enacted. Subsection (4) establishes that each subsequent report would have to be laid

“annually beginning with the day on which the previous report was laid.”

That annual cycle would ensure that ongoing monitoring of the illegal trade, providing a regular and up-to-date picture of the situation in the United Kingdom.

In conclusion, new clause 8 would establish a consistent and systematic process for reporting on the illegal sale and availability of tobacco and vaping products in the UK. By producing detailed annual reports assessing the scale of the illicit trade and its impact on public health and safety, the Government would be held accountable for addressing this issue. Furthermore, the new clause would provide Parliament with the necessary information to scrutinise the actions taken by the Government to combat the illegal trade, promoting transparency and informed decision making.

[Andrew Gwynne]

I am grateful to the shadow Minister for bringing this discussion before the Committee today. New clause 8 would require the Government to produce annual reports on the scale of the illegal sale and availability of tobacco and vaping products and the impact on public health and safety. I am sympathetic to the hon. Lady’s aim to ensure that the benefit and progress made as a result of our measures is known and seen by the public. However, this new clause is not needed, given that the Government already publish data on the illicit tobacco market and we will be doing the same for vapes following the introduction of the new vaping products duty.

On tobacco, His Majesty’s Revenue and Customs already regularly provides data and reports on various aspects of the illicit trade. For example, HMRC periodically publishes the tobacco tax gap report, which estimates the difference between the theoretical duty liability and the actual amount of tobacco duty collected by HMRC. That report also estimates the market share of illicit tobacco. HMRC also publishes the annual outputs for tackling tobacco smuggling, which include figures on tobacco seizures, including the number of criminal prosecutions and amount of civil penalties issued. National Trading Standards, too, provides public reports and updates related specifically to enforcement activity, which include the illegal sale and importation of vapes and related products. Additionally, HMRC intends, following the introduction of the vaping products duty, to publish annual estimates of the size of the illicit market, using tax gap data as well as data on activity targeting vaping duty fraud, such as the number of seizures.

It is important that enforcement agencies produce the estimates and figures on enforcement activity, given that that is their area of expertise. An annual report from the Secretary of State would only duplicate that information. For that reason, I ask the hon. Lady to withdraw the new clause.

[Dr Johnson]

I thank the Minister for his detailed response to this new clause. Can he confirm that the reports are produced on an annual basis, and will continue to be produced on that basis by both relevant authorities through this Parliament?

[Andrew Gwynne]

It is our intention that the reports will be published in accordance with the mechanisms with which they are published now, with the frequency that they are now published. Therefore, we do not need this new obligation on the Secretary of State.

[Dr Johnson]

I take the Minister at his word, and beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 9

Prohibition on manufacture and retail of high-capacity count vaping devices

“(1) The Secretary of State must produce regulations relating to the design, manufacture and sale of vaping devices and products that ensure—

(a) refill containers cannot be attached to a vaping device post-purchase to increase a device’s overall capacity during use, or allow for multiple pods to be attached at the same time to a device to increase its functional capacity beyond a 2ml limit.

(b) devices only have a single pod or tank that does not exceed 2ml limit.

(c) refill devices do not exceed a 10ml capacity and must be sold separately and not in the form of a clink-on tank.

(2) A person commits an offence if the person—

(a) manufactures, designs for manufacture, imports or supplies for sale a vaping device that is contrary to the regulatory requirements set out in subsection (1).

(b) sells or retails a vaping device that is contrary to the regulatory requirements set out in subsection (1).

(3) A person who is guilty of an offence under paragraph (2)(a) is liable on summary conviction to a fine of £20,000.

(4) A person who is guilty of an offence under paragraph (2)(b) is liable on summary conviction to a fine of £10,000.”— (Dr Johnson.)

This new clause would seek the introduction of regulations and new offences to prohibit the manufacture, design and retail sale of high-capacity count vaping devices.

Brought up, and read the First time.

--- Later in debate ---

[Andrew Gwynne]

Again, I am grateful to the shadow Minister for bringing this important discussion to the Committee. The provision would regulate high-capacity count vaping devices, which we understand to mean so-called “big puff vapes”, or devices that provide more than 600 puffs, by ensuring that the Secretary of State regulates the amount of liquid in a tank and ensures that the refill container cannot be connected to the vape device, creating more liquid and thus more puffs.

Although I empathise with what the shadow Minister is trying to do, the Bill already provides powers that allow us to regulate for the size of a tank or refill container and the amount of liquid that can be included, as well as powers to standardise vapes and to further restrict liquid availability. In addition, the Bill contains powers that allow us to regulate the amount of nicotine in a puff, so as to restrict not only the amount of nicotine in the tank, but the amount of nicotine that can be emitted in the vapour.

We have a duty to consult on ways in which vapes and vape devices can be standardised before we make regulations. This will ensure that the right decisions are taken, based on evidence, which will reduce the legal risk to Government from any future litigation.

Moreover, many so-called big puff vapes currently on the market will be caught by the upcoming ban on single-use vapes, which will be led by the Department for Environment, Food and Rural Affairs and comes into force on 1 June, because most of them are disposable products and do not have replaceable coils.

It is for these reasons that I ask the shadow Minister to withdraw her new clause.

[Dr Caroline Johnson]

The key thing is that although the Bill does have powers for all that to happen under regulation, we have already established that the regulations will take more than two months to write and more than six months to review, even after the Bill has gained Royal Assent in a few months’ time, so we will probably be sitting here next year with no restrictions at all on vapes, because the Government will not have written them. Therefore, I think it is important that in the meantime we try to use the Bill to make the most clear and important changes, including the size of the tank limit.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Andrew Gwynne]

This clause outlines the territorial extent of the Bill: part 1 applies to England and Wales, part 2 to Scotland, part 3 to Northern Ireland, and parts 4 to 6 and 8 to the entirety of the United Kingdom. Part 7 contains only amendments to existing legislation, and therefore, by virtue of subsection (1), its extent does not need to be explicitly stated. This is a standard clause that helps the measures in the Bill to function effectively; I therefore commend it to the Committee.

[Dr Johnson]

As the Minister says, clause 167 provides for the extent of the Bill. I am particularly interested in the way that part 3 extends to Northern Ireland. As part of the Windsor framework, Northern Ireland is subject to 283 Euro laws, including the EU’s tobacco directive. Article 24 of the tobacco directive says:

“Member States may not…prohibit or restrict the placing on the market of tobacco or related products”,

apparently contradicting this Bill.

--- Later in debate ---

[Andrew Gwynne]

Of course that has been considered. It is the responsibility of the United Kingdom Government to ensure that any legislation appertaining to Northern Ireland is compatible with the Windsor framework—that is clear. In drafting the Bill, the Government have taken into account all our domestic and international obligations. It has been put together following full consultation with Scotland, Wales and Northern Ireland, and we intend it to be United Kingdom-wide legislation for a smoke-free UK, in accordance with our international obligations.

[Dr Johnson]

I understand that that is the Minister’s intent—indeed, it would be my intent to see people in Northern Ireland, as part of our great country, be as healthy as the rest of those in the United Kingdom—but intent is not enough to make things happen, in the same way that the Government saying they will go for growth does not make it happen, particularly if they do things that have the opposite effect. What is the legal position on which the Minister believes the clause will stand?

[Andrew Gwynne]

The Bill is and will be, as an Act of Parliament, in full accordance with our international obligations. We will have a smoke-free United Kingdom, and the measures appertaining to Northern Ireland fit within our international and domestic obligations under the Windsor framework.

Question put and agreed to.

Clause 167 accordingly ordered to stand part of the Bill.

Clause 168

Commencement: Parts 1 to 4

--- Later in debate ---

[Andrew Gwynne]

I am grateful to my hon. Friend for her intervention. Perhaps it shows that history does matter and we can learn from it. Never mind Henry VIII powers: perhaps when we bring forward the regulations, we will have papal powers to go further.

[Dr Johnson]

As the Minister is aware from my previous contributions, I am delighted to see both the Bill’s passage and that the Government have taken on board some of my amendments to the Conservative Bill, which was similar. I very much enjoyed the history lesson from the hon. Member for City of Durham and hope that the Minister’s version of “like the clappers” will be just as quick.

[Andrew Gwynne]

I am grateful to the shadow Minister. We have been greatly entertained by her history lessons—I now know more about snuff than I ever wanted to. We have had tradition. We spent such an inordinate amount of time on clause 1: I thought we would never reach this stage. We were certainly not going like the clappers or supersonic at the start. I suspect that we have heard a large amount from ChatGPT—[Interruption.] Well, I think perhaps my hon. Friend the Member for City of Durham certainly did a good google.

[Dr Johnson]

The Minister credits me with more tech savvy than I have. ChatGPT is well outside my portfolio.

[Andrew Gwynne]

Well, if we have not heard from ChatGPT, we have certainly had, through the Institute of Economic Affairs, a bit of ChatSHT.

--- Later in debate ---

[Andrew Gwynne]

rose—

[Dr Johnson]

I think there is another person to whom thanks need to go on the record, and that is my right hon. Friend the Member for Richmond and Northallerton (Rishi Sunak). Let us not forget that while this Bill is coming through now, the vast majority of it is similar in content to—in some cases, it is entirely verbatim—the Bill that came through a similar Committee last spring, thanks to the visionary leadership of my right hon. Friend.

[Andrew Gwynne]

First, I thank my hon. Friend the Member for Dartford for his thanks. It would be remiss of me not to pay tribute to the former Prime Minister. When we were debating clause 1—all those many, many moons ago—I said that it took a lot of political bravery for a Conservative Prime Minister not just to go as far as he did, but to announce it at Conservative conference. I know from some of my Conservative friends that it raised significant eyebrows within that conference hall, but it was the right thing to do. That is why the Labour Opposition supported this legislation in the last Parliament. We would have loved to have seen it taken through the wash-up procedure before the general election, but that was not part and parcel of the deal that was put.

However, we are here today with this Bill, which includes many of the things that the shadow Minister wanted to have included in her Bill. What is transformative is that once what we have taken through Committee today—we have Report and Third Reading to go—gains Royal Assent, it will ensure that no child born after 2009 will legally be able to be sold tobacco products ever again. We are stopping that conveyor belt, as I have described it, for the tobacco industry, and through stop smoking services and support we are coming after the market share that they have protected. We are going to make sure that vapes are never promoted, advertised or displayed in a way that will encourage children to take up vaping.

The Bill is a landmark and it is life-changing. In just 25 years’ time, if the Government’s impact assessment is correct, the smoking prevalence of people under the age of 30 will be near to zero. It started here, with this Bill. Well done, and thanks to all Members.

Tobacco and Vapes Bill (Fourteenth sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Tuesday 28th January 2025 Public Bill Committees

[Dr Johnson]

This group of amendments comes back to the principle of proportionality, because there is not complete coherence between the different penalties across the United Kingdom and on the different offences that can be committed under the Bill.

The first part of amendment 84 would ensure that if someone admits guilt of a first offence of smoking in a smoke-free place, they should be liable to a fine not exceeding level 3, which is £1,000 on the standard scale, or a caution. That is a lot of money for lighting up in the wrong place, so it seems reasonable.

The second part of amendment 84 relates to the offence of failing to prevent smoking in a smoke-free place, which is where somebody who is in charge of an area or building fails to prevent people from smoking there. Again, we are asking the Minister to consider the proportionality of the penalty if this has not happened before, compared with a repeat offender, who we would want to throw the book at, metaphorically speaking.

Amendment 85 relates to Scotland. Amendment 97 relates to Wales and is partly in Welsh, and amendment 86 relates to Northern Ireland. Again, we are asking the Minister to consider whether the penalties are proportionate to the offence committed and whether the legislation gives due flexibility and enough guidance for someone committing an offence for the first time, perhaps inadvertently, to be treated differently from someone who is repeatedly flouting the law.

[Andrew Gwynne]

I am grateful to the shadow Minister for her comments. I have a sense of déjà vu, given that we have already debated ad nauseam her desire to weaken the enforcement regime and the penalties.

[Dr Johnson]

That’s not true!

[Andrew Gwynne]

The hon. Lady says that is not true, so maybe it is not quite ad nauseam, but we have covered an awful lot of ground on these arguments.

[Dr Johnson]

I do not seek to weaken the Bill or its enforcement. I wish to see the Bill be successful in stopping people smoking and vaping, particularly our young people, and I wish to see people who are repeatedly flouting the law in this way treated appropriately. However, I am keen to understand whether the Minister feels there is enough flexibility to deal with offenders appropriately, particularly if it is an inadvertent first offence.

--- Later in debate ---

[Andrew Gwynne]

We will have to agree to disagree, because I think anything that brings in lesser penalties than those that already exist in tobacco control, and I will resist that as I resisted the shadow Minister’s earlier temptations to be more lenient to certain people.

These amendments would change the penalty regime for the offence of smoking in a smoke-free place in England, Scotland, Wales and Northern Ireland and the offence of failing to prevent smoking in a smoke-free place.

[Dr Johnson]

Does the Minister accept that a fixed penalty notice of £200 is actually a more lenient penalty than a fine of £1,000 or a caution, which incurs a criminal offence?

[Andrew Gwynne]

I will come on to those points in due course to explain to the Committee why I think the shadow Minister is wrong in this regard and why she was wrong in all previous discussions about weakening the penalty system for first-time offenders. The amendments would create an exception to the maximum penalty that a person can face for committing one of these offences, if it is the person’s first-time offence. It would establish that someone who admits to committing either offence for the first time would be liable on summary conviction to a fine not exceeding level 3 on the standard scale, which is £1,000, or instead to a caution in England and Northern Ireland, or a recorded police warning in Scotland.

For the offence of smoking in a smoke-free place, that is two levels higher than the level of fine someone is liable to under the current legislation, which is level 1 or £200 in England, and it is the same as the current level of fine in Scotland and Northern Ireland. For the offence of failing to prevent smoking, the new maximum fine would be one level lower, which is level 3 or £1,000, than the level of the fine that someone liable to under the current legislation, which is level 4 or £2,500, in all three nations. In Wales, amendment 97 would remove a fine altogether and someone who admits to committing either offence for the first time would be liable to a caution.

While I appreciate the shadow Minister’s intention in seeking to alter the penalty regime for first-time offenders, amendment 84 is not appropriate. We do not want to create a penalty regime for the offence of smoking in a smoke-free place that has the potential to be stricter for first-time offenders than for repeat offenders. This amendment would see first-time offenders face a maximum fine of £1,000 on conviction, while repeat offenders would face a maximum fine of £200 on conviction in England. That is not consistent with our approach to the enforcement of tobacco and vape legislation, where enforcement action can be escalated such that repeat offences may lead to harsher penalties. For example, repeated age-of-sale offences can result in a restricted premises order.

We also do not want to weaken the existing penalty regime for tobacco and vape offences, including the offence of failing to prevent smoking in a smoke-free place, by creating exceptions for first-time offenders. Tobacco and vape offences must be taken seriously, and it is important that existing consequences are not weakened for first-time offenders or for anyone who has committed these offences. It is therefore not appropriate to lower the maximum possible fine that an offender who has failed to prevent smoking in a smoke-free place for the first time may face. It is for those reasons that I ask the shadow Minister to withdraw her amendment.

[Dr Johnson]

I am grateful to the Minister for outlining his thoughts on the matter, and I do not want to see the Bill weakened in this regard. As such, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Clause 142 stand part.

Clauses 147 and 148 stand part.

Clause 153 stand part.

--- Later in debate ---

[Andrew Gwynne]

My hon. Friend, who has done so much work in this area over such a long period of time, is absolutely right. I will come to some of the enforcement arguments. Our primary aim is to tackle passive second-hand smoking, but it is important that smoking is not so obviously prevalent in areas where children are present —for example, around children’s playgrounds and outside schools. It is not just that the issue of second-hand passive smoking is important—although it is—it is about the clear statement that smoking around children really should be something for the history books. That is why we have removed the public health test from the 2006 Act. Children’s playgrounds probably would not fall within the scope of that test, but it is a clear priority of the Government to remove the prevalence of smoking around children.

[Dr Johnson]

I thank the hon. Member for City of Durham for her excellent point; I agree entirely with her that we need to ensure that children are not exposed to cigarettes. Could the Minister clarify a couple of points on that basis? First, the edges of playgrounds have been difficult to define—when is the playground the park and when is the park the playground? If it is his intention that children do not see smoking and that that de-normalises the behaviour, which seems a noble aim, would that mean that if someone was within sight of the playground, they would not be able to smoke? Secondly, lots of hospitality venues have playgrounds within them. In fact, one attraction of some pubs that people take children to is that the children will be entertained, while the food is being cooked, by a play area. Will those play areas within hospitality venues be covered by these measures?

[Andrew Gwynne]

I refer the shadow Minister to the answer I gave some moments ago. These are all matters of detail that will be subject to consultation. We will have the arguments as to the definition of a children’s play area—whether it includes children’s playgrounds in hospitality settings or whether it is just in relation to playgrounds in housing estates and parks—and how the edges are defined. These are all matters for consultation and detail, before we get to the secondary legislation.

I want to challenge some of what the hon. Member for Farnham and Bordon said. To be fair to him, he rightly agrees that second-hand smoke is dangerous, but he makes the case that in outdoor settings it is potentially less dangerous than it is in enclosed settings. That was the view of the chief medical officer: clearly, if someone is indoors, in a constrained area, the prevalence of the toxicity that they are taking in as a second-hand smoker is much greater than it is outdoors—but even outdoors, if someone can smell it, they are breathing it in and it poses a risk to their health. The chief medical officers were really clear on this point: there is no safe level of exposure to smoke. That is particularly important for children, pregnant women and people with pre-existing health conditions such as asthma and heart disease, which may not be visible to the smoker.

A really interesting statistic that the English chief medical officer told the Committee was that at this moment in time, in January 2025, there are more people with clinical vulnerabilities in this country than there are smokers. That is really important when we talk about the balance of rights and responsibilities. The fact that there are now many more people with hidden clinical vulnerabilities than there are smokers shows, I think, where the balance needs to be.

[Dr Johnson]

The Minister is making a very powerful argument that smoking outside also poses a danger to the health of the nearby public. On that basis, if I were taking an older relative—with chronic obstructive pulmonary disease, perhaps—to a beer garden, I would be reluctant to sit outside in the summer in case someone sat down and smoked near her. Is the Minister not making an argument for including hospitality, on the basis that people who are outside in the beer garden are vulnerable to dangerous smoke?

[Andrew Gwynne]

People sitting in a beer garden where smoking is prevalent are breathing in second-hand smoke, but as the chief medical officers reminded the Committee, there is a balance here, and the United Kingdom Government of which I am a member have decided that that balance is appropriate in order to protect the hospitality business. That is why Ministers—myself, the Secretary of State and the Prime Minister—have made it very clear that outdoor hospitality will not fall within the scope of the consultation that we intend to bring forward like the clappers. That is our view and it is what we will do. That is not to say that there is a risk that is mitigated for somebody sitting outside. There is a risk, and we cannot mitigate that risk, but it is the balance that the Government have come to. There have to be trade-offs and, given the precarious nature of the hospitality business, we have decided that we will not consult to extend the outdoor smoking provisions to hospitality. I know that that disappoints the shadow Minister—it probably delights other Members on the Opposition Benches—but that is where this Government are.

The powers in the Bill allow for a change at some stage in the future, when it may well be that the balance has shifted and people no longer desire there to be smoking outdoors in hospitality settings. The hospitality trade may say, “This is such a minority pursuit that it is putting off good people from coming to my restaurant.”

[Andrew Gwynne]

The point I am making is that industry collectively may come to Ministers and say, “You know what? This carve-out that we’ve been given is no longer needed.” Ministers may well then come to the conclusion that, given that most of these hospitality businesses at some stage in the future are already imposing outdoor smoking bans because that is where their customer base is, we should bring the law into line with that and make it illegal. The provisions are written in the way that they are so that at some stage in the future, when things change, we can change the law, but right now, as I have said on umpteen occasions, we will consult on outside hospitals, outside schools and public children’s play areas, and that is it.

[Dr Johnson]

Can the Minister clarify a point? There seems to be a contradiction in my mind, but perhaps I have not understood him correctly. On the one hand, he is being very clear in stating that hospitality will not be included and that children’s play areas will—that seems very clear. Hospitality venues, however, do include children’s play areas. When I asked him about this before, he seemed to say that children’s play areas in hospitality would have to be part of the consultation. If children’s play areas within hospitality are included, then aspects of hospitality are included, are they not?

[Andrew Gwynne]

That is why it will be down to the consultation as to what precise details we will bring forward. It is not our intention to include hospitality settings, but the hon. Member has rightly raised that some pubs and restaurants have children’s playgrounds. As part of the consultation exercise, we will have to work out how a children’s play area is defined for the purposes of these measures, so that there is absolute clarity on what constitutes a children’s playground. These are not matters for now; they are matters for when Ministers seek to bring forward proposals. We will have that debate then.

[Andrew Gwynne]

Well, I hope that I will be a Minister for a very long time, both at the Department of Health and Social Care and with this public health brief, which I absolutely love. I will follow the evidence as and when it appears, but it is not my intention to bring forward changes any time soon. The reason that we are discussing changes now is that the last time that places were designated for a smoking ban was in 2006, and a lot of things have changed since that law came into force in 2007.

It may well be that, in a similar length of time into the future, things have changed sufficiently that the arguments we are having today on hospitality have become obsolete, and that the law needs to be brought into line with the facts on the ground. I hope that I can reassure the hon. Member for Farnham and Bordon—I am a man of my word—that it is not my intention, nor the intention of this Government to include the hospitality industry, but at some stage in the future, if things change, it may well be that Ministers do come back to the House on this. I cannot judge how long or short that time period may be, but I politely remind him and other Members of the length of time between 2006-07—when these issues were last being debated—and now, and hope that that gives him some reassurance.

The hon. Gentleman said that I have not been emphatic enough on beaches, woodlands, public parks, rights of way and public squares; these are all scenarios that are subject to consultation at some stage in the distant future. It is not our intention to cover these areas in England. I have been very clear about the three areas that we seek to extend smoke-free places to.

[Dr Caroline Johnson]

I remain a bit confused. On the one hand, the Minister has been very clear: no consultation on hospitality areas. On the other, he has been clear that consultation will occur on play areas. Fair enough. He then said that play areas in hospitality will be discussed as part of the consultation. In that case, how can he be discussing play areas in hospitality but not be discussing hospitality? I am completely confused by that.

[Andrew Gwynne]

Maybe I was not clear enough for the shadow Minister. We are seeking to bring children’s play areas into the scope of the Bill, and, as we have said, we will consult on restricting smoking around children’s play areas. How we define children’s play areas will be a matter for the consultation.

The hon. Lady has rightly raised a reasonable point that some pubs and restaurants have children’s play areas within them. The Government will have to come to a view, in advance of any future consultation, as to whether that would be included in the definition of children’s play areas—but those are debates for the future, not for now.

We have been clear that smoking will still be permitted in outdoor settings for hospitality. It may well be that there is a smoking facility in the beer garden and it is smoke-free around the children’s play area. That is a matter for a future consultation, but we are not going to bring outdoor hospitality settings into the scope of the smoke-free consultation. If anybody is a smoker today and wishes to sit in a beer garden, and that licensed establishment allows smoking—a growing number of pubs and restaurants are already making their outdoor settings smoke-free because that is where their customer base is—smoking will still be allowed. That will not be part of the scope of future consultation. I cannot be any clearer on that.

--- Later in debate ---

[Andrew Gwynne]

The clause relates to an existing regulation-making power in the Health Act 2006 that allows for the Secretary of State to make regulations that permit performers in England to smoke during a performance. The exemption would enable the creation of defences to the offences of smoking in smoke-free places and of failing to prevent smoking in a smoke-free place. It would be available only where smoking is justified to preserve the artistic integrity of a performance.

The creative industry is a significant part of the UK economy, and we have to balance a range of priorities while protecting the most vulnerable and ensuring that businesses are not financially impacted. The Bill aims to protect those who are most vulnerable to second-hand smoke, and we are of the view that the relative harm from the exemption is low. Without the exemption, it would not be possible for a film or TV show that is made in England to include an actor smoking, regardless of how of how integral that might be. The provision updates an existing power in the 2006 Act, so an exemption to allow performers to smoke during a performance is not new. I commend the clause to the Committee.

[Dr Johnson]

The Minister is right to say that the clause recasts an existing regulation-making power in section 3(5) of the Health Act 2006, whereby the Secretary of State may make regulations that allow performers to smoke during a performance

“if the artistic integrity of the performance makes it appropriate”,

and is allowed, on that basis, to create a defence to the offences of smoking in a smoke-free place and of failing to prevent smoking in a smoke-free place.

The act of smoking in film, theatre and other forms of art can be a character-defining gesture that speaks volumes about the person’s identity or emotional state, or about the period in history they represent—think of images of Clint Eastwood, John Wayne, Humphrey Bogart and James Dean. It can also establish the period in which a person lived. It was commonplace for virtually everyone to smoke in the 1940s and 1950s, and the smoke swirling around characters became as much a part of their onscreen presence as their dialogue or expressions. Although smoking in real life is certainly not cool, and comes with myriad negative health implications, its role in art and culture can deepen the portrayal of certain iconic figures and their stories.

The Minister says that the exemption has been part of law for a long time, and that it has worked. There are essentially two ways in which a performance can mimic smoking. The first is to have a fake cigarette, six of which can be bought on Amazon for less than a tenner. They look a bit like a cigarette and an actor can hold them, but they do not have any smoke coming from them. My understanding is that currently the most common prop cigarettes used by actors are cigarettes that contain no nicotine and no tobacco but some herbal items. They produce smoke but are less harmful than a cigarette because they do not contain tobacco, and less addictive because they do not contain nicotine.

The Bill provides for tobacco products to be banned for certain generations of people, and adds herbal smoking products to that ban. Could that inadvertently lead to individual actors and actresses smoking tobacco rather than the less harmful alternative, particularly if there is a price differential between the two? Has the Minister considered how the law will apply to actors and actresses who are born on or after 1 January 2009? Will there be an exemption from the other aspects of the Bill, either allowing them to buy the cigarettes themselves or allowing someone to give them cigarettes as a proxy sale, which would currently be banned under the first part of the Bill? At present, actors may be above the age of 18, but the Bill is intended to be future-proof, so if we roll forwards 15 years or so, when younger actors will be banned from smoking and buying cigarette papers and the like, how does the Minister envisage it working in practice?

Freedom of expression is essential to the arts, but the laws and practices that protect and nurture free expression are often poorly understood by practitioners and those who enforce the law. The question is, then: what is a performer? Section 3(8) of the Health Act 2006 states that “performance” can include

“the performance of a play, or a performance given in connection with the making of a film or television programme, and…if the regulations so provide, include a rehearsal.”

That seems a rather narrow definition of performance. Performance art can cross disciplines such as dance on the stage or on the street. If we go to the south bank, just opposite this House, we can see performers performing solo activities on the weekend. Contract law for those engaged in paid work offers some recognition and potential protection for performance-related work, defines it and outlines the conditions of the performance—it is indeed the performer and not other members of the performance who are included.

To create another hypothetical situation, suppose there is an interactive performance in which the performer on stage requires mass audience participation for their act and suggests that the people in the crowd have to join in with them. Would the artistic integrity of the performance trump the laws that prohibit smoking? The line between performer and audience can be blurred, so if an audience member were invited up on the stage by the performer, would they be allowed to try a cigarette or vape? Proposed new section 7(3) of the Health Act 2006 does not suggest that the performance needs to take place on stage or even in the theatre; some occur outside hospitality venues, as we have discussed.

To give a colourful example, imagine there is a performance called “Smokers”, taking place in a pub in, say, Sleaford, in my constituency. It features performers smoking and chatting in a pub. It is quite an experimental, interactive performance, and the members of the audience —in other words, regular pubgoers—can take part in the performance and light up a cigarette themselves should they wish to. Technically, does this scenario not fall within the remit of the law? We have to bear in mind that the tobacco industry is creative in looking for loopholes. Smoking is required in order to preserve the artistic integrity of this alleged performance. Will the Minister provide clarification on this point? Although my examples may sound inventive, the tobacco industry does come up with inventive ways of circumventing the legislation.

My other point relates to performers who are born after 1 January 2009 smoking or vaping on stage. We need some clarity on that.

[Sarah Bool (South Northamptonshire) (Con)]

To follow on from what the shadow Minister said, the Minister said that performers who smoke during performances would not be a problem because the second-hand passive smoking would not be big enough of an issue. But why can a cigarette be smoked as part of a performance, yet a cigar cannot be smoked once a year by a single person? Why is smoking allowed for this artistic purpose, yet it is not allowed for someone who would like to smoke a cigar recreationally?

[Andrew Gwynne]

This is an existing power, in the Health Act 2006, that we have retained in the Bill at the request of the creative industries in England. I reiterate what I said in opening the debate: the exemption will be available only where smoking is justified to preserve the artistic integrity of a particular performance, so smoking would not be allowed in the hypothetical situations we have heard about. The provision is intended solely to allow the artistic integrity of a performance to be retained.

The shadow Minister asked whether the provision would merely encourage actors to smoke tobacco. Of course, that is not the case. Herbal smoking products are covered under “smoke-free” as well, so they are treated the same.

[Dr Johnson]

With respect to the Minister, the point was that they are treated the same. My understanding is that, because of the rules around tobacco, actors who are non-smokers are more likely to use a non-tobacco herbal product that does not contain nicotine. Given the Minister’s previous comments about tobacco being more harmful, why not make the exemption specific to products that do not contain tobacco and nicotine?

[Andrew Gwynne]

We are following the request of industry. This is an existing power in the 2006 Act and it is to be used only in the exceptional circumstances in which cigarettes or indeed herbal smoking products are appropriate for the authenticity of the performance. That is exactly what the law is now.

I agree with the shadow Minister that it is not cool to smoke. I may have mentioned in previous sittings that I have been successful in getting not one but four stories in LADbible. One of them made precisely the point that the shadow Minister made: that smoking is not cool and it is not glamorous. It is a dirty, stinking, horrible habit that kills two thirds of people who start it. That is why we are committed to a smoke-free generation.

I suspect that this exemption for the creative industries, which is pre-existing, may become obsolete at some point in the near future, not least because I would imagine that as more and more actors themselves are brought up smoke-free as a consequence of the measures we are introducing, actors will eventually point-blank refuse to smoke a cigarette, whether it adds creative authenticity or not.

As I have said, this is a follow-on from an exemption that was previously granted in the Health Act 2006, which is why I seek the Committee’s permission to retain it in the Bill.

[Dr Johnson]

I understand that the Minister is saying this is what the industry is asking for and that it existed before. However, as a result of the change in regulations, people who act as if they are smokers in a video or film are currently able to smoke herbal cigarettes that are designed as prop cigarettes and do not contain tobacco or nicotine. Although it may not be terribly good for their health for them to do so, those cigarettes do not contain the tobacco that kills two thirds of its users, and they do not contain nicotine either. In providing the exemption for the creative industries, will the Minister at least consider providing an exemption for the least harmful version of what will appear to the audience as a cigarette and cigarette smoke, so that we can protect actors as much as possible?

[Andrew Gwynne]

I am open to taking that suggestion away and having a look it, but at this stage it is our intention merely to copy and paste the existing exemption that applies for the creative industries in England, which is what the clause does.

Question put and agreed to.

Clause 137 accordingly ordered to stand part of the Bill.

Clause 138

No-smoking signs in England

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clauses 143, 149 and 154 stand part.

[Dr Johnson]

Clause 138 relates to no-smoking signs in England and amends section 6 of the Health Act 2006, setting out that whoever occupies or manages no-smoking premises must ensure that the relevant no-smoking signs are displayed in or near the premises—which is, of course, very sensible.

We talked earlier about the importance of people understanding what the law is and where they can and cannot smoke. The clause allows the Secretary of State to make regulations further to the no-smoking signs. That is sensible for outdoor spaces, but does the Minister have information on how the regulations will define the size and edges of those spaces, and on the cost to industry and local councils of providing signage?

[Andrew Gwynne]

I thank the hon. Lady for that point. The exact requirements of the position of the signs for smoke-free locations will be set out in regulations, but we will ensure that they are required to be in a prominent position near the smoke-free place.

The other matters that the hon. Lady raises relate to questions that we will need to consult on and work through in regulation—for example, who will be required to provide the signs and whether it will be down to public bodies such as NHS trusts and local authorities. All the costs, including any requirements to put up signs and their exact locations, will be considered as part of any future impact assessment of the policy. I commend the clauses to the Committee.

--- Later in debate ---

[Andrew Gwynne]

The clauses will amend the Health Act 2006, the Smoking, Health and Social Care (Scotland) Act 2005, the Public Health (Wales) Act 2017 and the Smoking (Northern Ireland) Order 2006 by inserting new provisions relating to vape-free places across the four nations. They will allow the Secretary of State in England, the Scottish Ministers in Scotland, the Welsh Ministers in Wales and the Department of Health in Northern Ireland to designate certain places and vehicles as vape-free, but only where they are already smoke-free. They also provide that appropriate signs must be displayed in or near the vape-free locations, and they give the power to set requirements in respect of those signs.

Although vapes are less harmful than smoking, they are not harm-free. There are legitimate concerns regarding the unknown long-term harms of vaping. Vapes produce aerosol that exposes people to nicotine and potentially to other toxicants. This poses health risks to children and vulnerable people in particular, for example the risk of triggering an asthma attack. It is important and right that the Government act to protect more vulnerable groups from potential health harms.

Many businesses and enclosed public places already voluntarily have schemes in place to prohibit vape use in their premises. We want clearer legislative requirements so that it will be easier for the public to understand where vapes can be used and for enforcement agencies to enforce accordingly. The clauses will therefore give the relevant Ministers and the Department of Health in Northern Ireland powers to restrict the use of vapes in areas, but only those areas already designated as smoke-free. Those could include spaces such as indoor pub areas, public libraries or buses.

In addition to making it an offence to vape in a vape-free place, the clauses will place duties on persons who control or manage vape-free places—that can include drivers of vape-free vehicles—to ensure that their premises or vehicle remains vape-free. In Scotland, the obligation is to not knowingly permit another to use a vape in a vape-free place; in England, Wales and Northern Ireland the obligation is to cause someone who is vaping in a vape-free place to stop using the vape. The difference in approach is a result of amending existing legislation in a devolved area, but the practical effect will be the same.

The clauses make provision to permit the use of a vape during a performance if the use is justified to preserve the artistic integrity of the performance. In Wales, Northern Ireland and Scotland, this takes the form of a defence to the offences of vaping in a vape-free premises or failing to prevent vaping in a vape-free premises. In England, the Secretary of State has the power to create equivalent defences.

The power to designate any spaces vape-free will be subject to a full and open consultation, and the evidence for imposing any restrictions will be considered before regulating. I commend the clauses to the Committee.

[Dr Johnson]

This is an important clause that I am pleased to see, as I have campaigned against vaping in children for quite some time, as the Minister is aware. As the Minister says, if you can smell it, you are breathing it in. That is an obvious statement, but I have had people tell me that vapes do not give out any smoke and that it is therefore not possible for them to cause damage to anyone nearby. They may not give out smoke, but they certainly give out chemicals that are inhalable by anyone next to the person vaping. Otherwise, it would not be possible to smell the blueberry, or whatever flavour the person has chosen.

Key findings from studies on second-hand vaping include those on nicotine exposure. E-cigarettes emit nicotine in their vapour—in lower concentrations than cigarettes, to be fair, but they do emit it. The amount of second-hand nicotine depends on the brand; nicotine emissions vary among products. One study found second-hand exposure to nicotine from e-cigarettes to be lower than that from tobacco smoke generally. Nevertheless, it exists, and it is still undesirable for people, particularly children, to be forced to inhale such a toxin. It is particularly harmful to pregnant women and those with cardiovascular conditions. The potential long-term effects of such low-level nicotine exposure are unclear.

Although e-cigarettes do not release compounds such as carbon monoxide, as cigarettes do, they do emit other chemicals such as propylene glycol and vegetable glycerine, which have been associated with respiratory irritation. Certain volatile carbonyl compounds, such as formaldehyde, have been identified in cigarette vapour, which could pose health risks with long-term exposure.

One of the persistent limitations with vaping is the lack of long-term data on the health effects of second-hand e-cigarette vapour. Most researchers focus on the acute effects, but as e-cigarettes are a relatively new product, certainly on a mass-market scale, we still do not fully understand the potential long-term health consequences of inhaling these vapours regularly, especially in confined spaces.

I would argue—it seems from the clause that the Minister agrees—that we need to be careful, particularly with our children. We do not want to addict a whole load of generations to this habit. We do not want others to experience second-hand vapours. There have been cases of people dying of second-hand smoking. As the Minister has said, we know that second-hand vapour can cause asthma and other lung diseases.

Parliament itself has been a place where one experiences second-hand vaping. I was pleased to see last year that Mr Speaker had put notices in the Tea Room and elsewhere around the House stating that there should be no vaping in public. We are due to vote shortly, as you said, Mr Pritchard; even during votes, I have gone into the ladies’ rest rooms, where we have a little seating and sofa area, and found female MPs vaping, including one member of the Cabinet. It is prevalent in all parts of society. We should not be exposed to such things in the workplace. Children, in particular, should not be exposed to such chemicals at all.

Clause 139 will amend the Health Act 2006 by inserting a new chapter, “Vape-free places in England”, which will establish a framework for prohibiting the use of certain vapes in designated areas and in vehicles in England, ensuring that specific places remain vape-free, much like the existing rules for the smoke-free environment. Does the Minister intend there to be an overlap? Clearly it would be much simpler, both for enforcement and for understanding among the public, if there were a direct overlap with the incongruity between the smoke-free and vape-free environments. I know that some say that if we make places vape-free we are encouraging people to smoke, but they cannot smoke there either, so that seems to be a false argument.

--- Later in debate ---

[Andrew Gwynne]

The clauses will amend the Health Act 2006, the Smoking, Health and Social Care (Scotland) Act 2005, the Public Health (Wales) Act 2017 and the Smoking (Northern Ireland) Order 2006 by inserting new provisions relating to heated tobacco-free places. They provide for the Secretary of State in England, Scottish Ministers, Welsh Ministers, and the Department of Health in Northern Ireland to designate certain places and vehicles as heated tobacco-free, but only where they are already smoke-free. They also require that appropriate signs must be displayed in or near the heated tobacco-free place, and they give powers to set requirements in respect of those signs.

In addition to making it an offence to use a heated tobacco device in a heated tobacco-free place, the clauses also place duties on persons who control or manage heated tobacco-free places, which can include drivers of heated tobacco-free vehicles, to ensure that their premises or vehicles remain heated tobacco-free. In Scotland, the obligation is to not knowingly permit another to use a heated tobacco device in a heated tobacco-free place; in England, Wales and Northern Ireland, the obligation is to cause someone who is using heated tobacco in a “free from” place to stop using the device. The difference in approach is a result of amending existing legislation in a devolved area, but the practical effect will be the same.

The provisions for England will also provide powers for the Secretary of State to create defences to permit the use of heated tobacco devices during a performance if that use is justified to preserve the artistic integrity of the performance.

There is no safe level of tobacco consumption. All tobacco products are harmful, including heated tobacco products. There is evidence from lab studies of the toxicity of heated tobacco. There are less harmful, tobacco-free products that can support people to quit instead of using an alternative tobacco product. It is therefore important that heated tobacco products be included within the scope of the Bill.

We are considering making all currently smoke-free indoor places heated tobacco-free, and making outdoor spaces heated tobacco-free. However, that is subject to consultation. There is a statutory duty to consult, as I have mentioned on umpteen occasions, before bringing forward regulations to designate any spaces heated tobacco-free. I therefore commend the clause to the Committee.

[Dr Caroline Johnson]

Clause 140 and the associated provisions for the other parts of the United Kingdom provide powers for the Secretary of State to prohibit the use of heated tobacco products in England in places that are already smoke free. That will need to be enforced by people who may not be familiar with heated tobacco devices. Will the Minister comment on the training?

I have only once come across a heated tobacco device at a dinner at Westminster. I initially thought the gentleman was vaping at the table, but it turned out he was using a heated tobacco device, which I had a look at—I had never seen anything like it before. It may be all well and good in metropolitan London, where people may be more familiar with heated tobacco, but how will people who are not familiar with these devices and have perhaps never heard of them be expected to recognise them and know they are not legal?

Has the Minister any plans on how to educate the public on the presence of heated tobacco, what it is used for and what the devices look like, in order that the law can be enforced? How will he do so without providing an advert for it to people who are old enough to buy it—at least in the short term, until it becomes illegal?

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss the following:

Schedule 17.

Clause 146 stand part.

Schedule 18.

Clause 152 stand part.

Schedule 19.

Clause 157 stand part.

Schedule 20.

[Dr Johnson]

Clause 141 is fairly self-explanatory and links to schedule 17, which contains the amendments to other legislation consequential on clauses 136 to 140. I do not have any specific comments to make on it.

[Andrew Gwynne]

These clauses and schedules ensure that the definitions in existing legislation align with those used in the Bill, and that references are accurate and reflect any provisions inserted into or removed from the relevant Acts. I therefore commend the group to the Committee.

Question put and agreed to.

Clause 141 accordingly ordered to stand part of the Bill.

Schedule 17 agreed to.

Clauses 142 to 146 ordered to stand part of the Bill.

Schedule 18 agreed to.

Clauses 147 to 152 ordered to stand part of the Bill.

Schedule 19 agreed to.

Clauses 153 to 157 ordered to stand part of the Bill.

Schedule 20 agreed to.

Clause 158

Power to prohibit vaping etc on ships

Question proposed, That the clause stand part of the Bill.

[Dr Johnson]

Clause 158 relates to shipping. I think a question was raised earlier about why ships were specifically excluded. That is partly because ships are important enough to have their own specific, separate clause. Clause 158 amends section 85 of the Merchant Shipping Act 1995 and makes provision regarding safety regulations that are made under that Act to provide for vape-free and heated tobacco-free provision for ships and hovercraft, corresponding to provisions in the Health Act 2006.

As I mentioned in an early sitting of this Bill Committee—I am glad that the Minister enjoyed the history of tobacco—maritime history and tobacco are inextricably linked. The allure of tobacco in the new world enchanted European sailors and left an indelible mark on global commerce as well as on our culture. Famous sailors, both factual and fictional, were smokers, from Captain Cook—who came from a place very close to where I was born, Marton in Middlesbrough—to Ernest Shackleton, and from Popeye the sailor man to Captain Haddock in the Tintin books. Smoking was a fact of life—worryingly, even aboard wooden vessels.

For four centuries, seamen and passengers used cigarettes, pipes and matches, which were a significant cause of maritime fires and disasters. The earliest dated clay pipe comes from a ship that sank off Alderney in the Channel Islands, probably in November 1592. A sea captain wrote in Fraser’s Magazine for Town and Country in 1875, I think, a piece entitled “The Dangers of the Sea”. In it, he chastised the carelessness of merchant seamen. He said:

“It is to be regretted that in all classes of merchant ships smoking below is an acknowledged custom. Jack lies on his dirty bed of straw with pipe in mouth, reading some old scrap of a newspaper, or the pages of a novel, and not unfrequently falls asleep with the burning embers beside him”,

adding that the mystery is not why the ship in question was burned,

“but why such accidents are not constantly occurring from this and other causes.”

Indeed, we talked earlier in Committee about the dangers of house fires from people falling asleep while smoking in bed.

More than eight decades later, in a 1957 booklet, the Ministry of Transport still blamed smoking more than any other reason for fires on board ships. It said:

“Lighted cigarettes smoked surreptitiously are abandoned in combustible cargo and cause fires which smoulder unnoticed for days before bursting into flame. They are thrown away on deck where the wind catches them and blows them into an open port, hatch, or ventilator where they may land on inflammable material. They are left on the edges of ashtrays in the saloon or dropped from men’s hands as they fall asleep.”

With reports like that, it is no wonder that smoking was eventually banned in the maritime context.

Ordered, That the debate be now adjourned.—(Taiwo Owatemi.)

Tobacco and Vapes Bill (Thirteenth sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Tuesday 28th January 2025 Public Bill Committees

[Dr Johnson]

I know my hon. Friend is very interested in AI. I am sure that if it is possible to do so, these industries will use any means available to them to maintain their market.

The clause extends the regulations from tobacco to cover all vaping products, herbal smoking products, cigarette papers and nicotine products. Given my concerns about children and vaping and the use of nicotine, I think this is a sensible measure, which I support.

[The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)]

It is a pleasure to serve under your chairmanship, Mr Pritchard. Clauses 126 and 127 and schedule 16 contain provisions relating to audiovisual services and radio broadcasting. Clause 126 provides that part 6, which deals with advertising and sponsorship, does not apply to certain categories of television and radio service. That is because these services are already prohibited under the Communications Act 2003.

Clause 127 introduces schedule 16, which amends the Communications Act 2003. The amendments extend provisions in that Act that ban advertising and sponsorship of tobacco products in certain TV and radio services to include herbal smoking products, cigarette papers, vaping products or nicotine products. That ensures that the advertising ban on tobacco in television, radio and on-demand programme services is extended to all of those products. In practice, the measure means we will no longer see banned products or promotional material for those products on any of those mediums.

The shadow Minister rightly points out that the services listed in the clause include ITV, independent television and radio, the BBC and Sianel Pedwar Cymru, and on-demand programme services—that covers the points that Members have made—and non-UK on-demand programme services, which are tier 1 services as defined in the Communications Act 2003. I hope that reassures the hon. Member for Farnham and Bordon that it also includes programmes produced and aired outside the United Kingdom that are brought into the United Kingdom.

As a helpful aide-mémoire for the Committee, the Communications Act 2003 regulates telecommunications broadcasting. It confers functions on the Office of Communications, a regulator, to oversee the services. The Act puts in place effective rules for the advertising of tobacco on television, radio and on-demand services. By amending the Act, we ensure that this existing framework also applies to vaping products, nicotine products, and cigarette and herbal smoking papers. There is no need to reinvent the wheel and add more to the Bill, as we can use the existing provisions in the 2003 Act. I therefore commend the clauses to the Committee.

Question put and agreed to.

Clause 126 accordingly ordered to stand part of the Bill.

Clause 127 ordered to stand part of the Bill.

Schedule 16 agreed to.

Clause 128 ordered to stand part of the Bill.

Clause 129

Enforcement authorities

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Andrew Gwynne]

I thank the shadow Minister for her questions. The Government are investing over £100 million over five years to boost His Majesty’s Revenue and Customs and Border Force’s enforcement capability to tackle illicit tobacco. In 2025-26 we will invest £30 million of new funding for enforcement agencies, including trading standards, Border Force and HMRC, to tackle illicit and under-age sales of tobacco and vapes, supporting them to implement the Bill.

Decisions on funding for trading standards in future years will be made as part of the spending review process, but given our clear commitment to enforcement in the Bill and the fact that we have put down the payment of £30 million for enforcement in the next financial year, I hope hon. Members are assured that we take these matters seriously. We are investing £3 million over two years specifically to enhance the work led by National Trading Standards to tackle under-age and illicit vape sales. That work is carried out through enhancing market surveillance and enforcement action on ports, online sales enforcement, and boosting the storage and disposal of illicit vapes. The new funding for 2025-26 will build on this work to tackle under-age and illicit vape sales.

The shadow Minister asked how trading standards will use their additional enforcement funding. The crucial point is that we want to boost trading standards’ capacity, to enable the services to conduct more under-age sales test purchases, remove illicit products from the market and identify non-compliant products and bring them into compliance where possible.

[Dr Johnson]

My question was not simply how trading standards will use the money allocated, but whether the Minister feels that the money he has allocated is adequately purposed?

[Andrew Gwynne]

I do, which I have just said. The £30 million in the next financial year to boost the enforcement agencies will meet the needs that the Bill sets out. It is also about boots on the ground and having greater capacity. We will be working with trading standards on this additional enforcement funding to ensure that they increase their capacity and are able to take on the roles and responsibilities that the Bill places on them. We will continue to discuss with trading standards how we can best support them in respect of the measures of the Bill. I commend the measures to the Committee.

Question put and agreed to.

Clause 129 accordingly ordered to stand part of the Bill.

Clauses 130 to 132 ordered to stand part of the Bill.

Clause 133

Power to extend Part 6 and Communications Act 2003 to other products

Question proposed, That the clause stand part of the Bill.

[Dr Johnson]

Clause 133 gives the Secretary of State the power to extend part 6, which deals with advertising and sponsorship, and the Communications Act 2003 to other products, specifically products that are devices of a specified description enabling a tobacco product to be consumed, such as a heated tobacco device or pipe, or an item that is intended to form part of such a device. It allows the Secretary of State to consult with the required persons and gain consent where required with the devolved legislatures. However, how will the Secretary of State further define that, and can the Minister give us some examples of the types of products that might be included under the power? Could it allow for the expansion of regulation to a wide range of products not originally envisaged in the Bill?

The inclusion of devices and items potentially covers a wide array of consumer products without any clear boundary. What are the specific criteria or considerations that the Secretary of State must use when deciding whether to extend the provisions? Could that lead to arbitrary or inconsistent decision making, depending on the political or public health priorities of the Government of the day? The wording seems to give considerable latitude, but not much clarity on when or how the Secretary of State should exercise the power.

[Andrew Gwynne]

I am very happy to answer the question posed by the shadow Minister. It is a simple answer: we need clause 133 to avoid loopholes. Otherwise, newer products such as heated tobacco—and those products that have not even been developed yet—are in scope of the restrictions, but devices used alongside them could still be used to promote tobacco consumption.

Question put and agreed to.

Clause 133 accordingly ordered to stand part of the Bill.

Clauses 134 and 135 ordered to stand part of the Bill.

Clause 136

Addition of smoke-free places in England

--- Later in debate ---

[Dr Johnson]

Amendment 14 defines a local authority as

“a county council…a district council, a London borough council, the Common Council of the City of London in its capacity as a local authority, the Council of the Isles of Scilly, a combined authority or a combined country authority.”

By the time we get to next summer, Lincolnshire will probably have district councils, a county council and a mayoral authority—I do not agree with having a mayoral authority, because I think that is too many tiers of government, but that is an aside. What if those authorities do not agree? If we give them all the power to make regulations, they could all make different regulations based on different opinions—as is currently the case in Lincolnshire, the various authorities are not always under the control of the same political party.

[Andrew Gwynne]

I am grateful to my hon. Friend the Member for Dartford for bringing this issue before the Committee. As we have heard, amendment 11 would introduce a power for local authorities to make byelaws relating to the designation of additional smoke-free places in England, which would sit alongside the Secretary of State’s power to make regulations in the same regard.

As we know, the Bill expands the Secretary of State’s powers to create additional smoke-free places at the national level. In England, the Government have already indicated that we intend to extend the smoke-free designation to outdoor places including children’s playgrounds and outside schools and hospitals, but not to outdoor hospitality settings or wider open spaces such as beaches. The reforms we are setting out in the Bill will be subject to full consultation, and we want to hear the views of people from across the country to ensure that we get them right.

As drafted, the Bill gives no additional powers to local authorities. However, they have existing mechanisms for designating certain spaces as smoke-free. As we have heard, areas such as Manchester, my home city, have already used pavement licensing provisions to ensure that people have smoke-free options when they consume food and drink in certain locations, and that works well. Some local authorities have implemented public space protection orders to prohibit smoking in certain areas. For example, the London borough of Enfield has used a public spaces protection order to restrict smoking within the boundaries of children’s playgrounds. Of course, that will be obsolete should the consultation for the national scheme extend to children’s playgrounds, as we intend it to.

[Dr Caroline Johnson]

I thank the Minister for making those interesting points. Can he clarify whether powers such as those enacted in Enfield create a criminal offence?

[Andrew Gwynne]

We want to ensure that people who are smokers are not criminalised. Public space protection orders do potentially go down the criminal route. We want to ensure that that is not the case, which is why the Enfield scheme would of course be obsolete under the later provisions—which we are going to discuss today, hopefully—in relation to extending national outdoor smoke-free places.

--- Later in debate ---

[Andrew Gwynne]

I suspect we are straying off the measures before us, Mr Pritchard, but I assure the hon. Gentleman that consultation is a statutory duty in this Bill. Were the Secretary of State, or indeed Welsh, Northern Irish or Scottish Ministers, to seek to change the scope in the future, they would have a duty at every stage to consult further. I hope that reassures the hon. Gentleman.

I was talking about Enfield and its public spaces protection orders. It is of course for the local authority to determine whether a PSPO is appropriate and that the legal test for implementing a PSPO is met, along with completion of the relevant consultation requirements. Nottingham has created a voluntary smoke-free zone at events, especially those where children are present, and it introduced a smoke-free play park policy in 2015. Other local authorities, such as Oxfordshire county council, have introduced voluntary smoke-free school gates policies. Given the options already available to local authorities and the national reforms introduced through this Bill, which we will debate further, neither the Government nor I think it is necessary to grant these byelaw-making powers via the Bill.

In answer to a point that the shadow Minister raised, which I hope to answer for my hon. Friend the Member for Dartford, legislation sets out all the different types of local authority. Enforcement in terms of the requirement to police any changes would appertain to the particular local authority, because it would be on that local authority’s land that the measures would apply. For example, in a two-tier area, if the county council as the highways authority deemed that pavement licensing were to be introduced, it would be for the county council to enforce its own measures; if a district council brought in measures in a park for which it was responsible, it would be for the district council. I think that is quite a simple explanation.

I understand that we have a complex jigsaw of local government, but it is for the particular type of council or authority that introduces a measure to enforce it. For example, the pavement licence in the City of Manchester is for the City of Manchester to enforce—not Andy Burnham as the Mayor of Greater Manchester, or indeed the Greater Manchester combined authority. That is pretty simple.

[Dr Johnson]

My question was not so much about the enforcement, which is defined in the Bill as the local weights and measures authority. Amendment 11 says that a local authority may make byelaws. The local authority that may make these byelaws includes the whole range of county councils, district councils and combined authorities, implying that, whoever is enforcing it, those that could make a byelaw could overlap and have contrary views.

[Andrew Gwynne]

Obviously, if a local authority introduces byelaws, as the City of Manchester has done in respect of pavement licensing, it is for that local authority to ensure that those byelaws are adhered to. Of course, in that case, the weights and measures authority is the City of Manchester, so I suppose that makes it easier.

These powers are already being used. Local authorities are already designating areas, whether it is for pavement licences, public space protection orders or just deeming that land within their own responsibility is smoke-free. We do not believe that the amendments are necessary. I kindly ask my hon. Friend the Member for Dartford to withdraw them.

--- Later in debate ---

[Andrew Gwynne]

I can speak only for England, but I am legislating for the United Kingdom with the permission of Health Ministers. It may well be that Health Ministers in other parts of the United Kingdom decide not to consult at all. In Wales, for example, they already have the coverage of all the areas that we are going to consult on in England.

The hon. Member for Farnham and Bordon says he is now even more worried. Well, I tell him this: worry not, because his amendment relates to England only. If he is so mithered about the rights of the Welsh to consult Welsh business on Welsh matters, he should have put Wales in his amendment. If he so bothered about the rights of the Scots to consult on Scottish matters with Scottish business, he should have put Scotland in his amendment. If he is so bothered about the rights of the Northern Irish to consult Northern Irish business about Northern Irish matters, he should have put Northern Ireland on the face of his amendment. He doth protest too much, Mr Pritchard!

The hon. Gentleman has actually made my case for why these measures are proportionate: they cover the whole of the United Kingdom and it will be down to Ministers in the respective parts of the United Kingdom to decide who they will consult, why they will consult and what areas they will consult on. But as far as England is concerned, I cannot be any clearer: hospitality is out of the scope of our consultation. We will consult on three things: hospitals, schools and play areas.

[Dr Caroline Johnson]

I thank the Minister for giving way, although I would point out that it was not my hon. Friend the Member for Farnham and Bordon’s amendment at all.

[Andrew Gwynne]

But he supported it.

[Dr Johnson]

He is supporting it, but the Minister asked why my hon. Friend did not include things in it. The answer is that he did not write it. The amendments were written by others, one by the Liberal Democrats, and supported by him, which is not the same thing.

The Minister will no doubt have caused concern for the people in hospitality industries in Wales, Northern Ireland and Scotland who are following proceedings today. Could he tell the Committee a bit about the discussions he has had with his counterparts? Have any of them indicated to him their intent regarding hospitality areas in their designated parts of the United Kingdom?

[Andrew Gwynne]

I certainly can. I have had umpteen conversations with Health Ministers from across the United Kingdom, and none of them has indicated to me that they intend to extend this to hospitality. But the point is that, as Ministers in their own legal jurisdictions, it for them to decide who they are going to consult and on what basis they are going to consult. In terms of the powers in this Bill, which areas they want to extend—if any—is a matter for them. It is not a matter for me or for this Parliament.

We are merely legislating to give those Health Ministers the tools; if they wish to go beyond the scope that the English Ministers are setting out, it is their right to do so. That is the devolution settlement. But they will, of course, have the statutory duty to consult, and they will, of course—I would imagine—want to work with businesses, in Northern Ireland, in Wales, or in Scotland, to make sure that whatever measures they bring forward are right and workable, just as we would in the Department of Health and Social Care, should we decide, at some stage in the future, to go further again.

[Dr Johnson]

I doubt whether the Minister has provided a huge amount of reassurance to the hospitality sectors in those jurisdictions.

I want to pick up on a point made by the hon. Member for Cardiff West in his intervention about prisons. As far as I can tell, closed prisons are smoke-free environments—that is already the case both inside and outside—but I understand that prisoners in closed prisons are allowed to vape, including in their cells, where they may be vaping near other prisoners who may not wish them to have that choice. We are depriving people of their liberty for good reason when sending them to prison, but we should not be exposing them to chemical vapour as part of that if they are not vapers themselves.

Could the Minister talk to us about the discussions he has had with Justice Ministers about how provision is made for the public health of those currently in prison?

--- Later in debate ---

[Andrew Gwynne]

I am grateful to the shadow Minister, who is now making my case perfectly for why we need to have the regulations as we do. It may well be that, at some stage in the future, a Public Health Minister, or indeed the Secretary of State, having had conversations with and guidance from the Ministry of Justice, seeks to quickly and simply extend provisions within the prison estate. Were the hon. Lady’s amendments to pass, the ability to do that would not be in the Bill.

We have had conversations with Ministers across Government. This Bill has been subject to the usual write-around, so it has the collective support of the Ministry of Justice. The details of which areas would be in or out of the scope of different measures within the Bill will be a matter for the regulations and for consultation. With that, the shadow Minister has precisely made the case for why having things prescriptively in the Bill ties the hands of Ministers.

[Dr Johnson]

The Minister is suggesting that to be able to restrict access to these products in prisons, he needs to have a wide scope within clause 136. Given that prisons are already smoke-free areas, that surely cannot be the case.

[Andrew Gwynne]

No, but the point the hon. Lady is making is about what conversations Ministers have had with other Ministers to extend the scope, to protect the rights of others and so on. It is precisely for that reason that the Bill is drafted as it is. At some stage in the future, a Government Minister in another Department may well decide that they want to extend the scope, using the powers we are talking about. Under her amendment, we would then have to find a slot in primary legislation to amend a piece of primary legislation. That is precisely why her amendments are unworkable.

The mechanism in place would allow a consultation on an extension; following consultation, secondary legislation would be debated as part of the affirmative process—there would be a debate, a discussion, and a vote in Parliament. That is precisely why the amendments are unworkable, and I call on the Committee to resist them.

I move on to the removal of the test in the Health Act 2006. That is to enable the Secretary of State to more easily make regulations designating outdoor spaces as smoke-free, but only where such a space is a workplace or open to the public. Reinserting the test would conflict with our intention to extend smoke-free status to places I have mentioned—for example, children’s playgrounds probably do not meet the requirement of there being significant risk of significant quantities of smoke. However, making them smoke-free would almost certainly protect some of the most vulnerable.

Since 2006, the evidence base for harms of second-hand smoking has evolved. It is therefore necessary to update the current legislation, as clause 136 does, to provide more flexibility should the Government wish to designate additional smoke-free places in future.

[Dr Johnson]

The Minister is making a reasonable point. However, the evidence can change on what constitutes a significant amount of smoke—in the past, people may have believed that someone had to be smoking in order to come to harm and then that someone could also come to harm in an enclosed indoor environment with someone smoking. It may be that the evidence now shows that even being in proximity to someone smoking outdoors—the fact that you can smell it means you are breathing it in—means you are coming to harm on some level. But does the amendment not account for that with the word “significant”? Amendment 94 says:

“if in the Secretary of State’s opinion there is a significant risk that, without a designation, persons present there would be exposed to significant quantities of smoke.”

A significant quantity of smoke may in the past have been considered to be quite a high volume, but now might be a much lower volume. The flexibility the Minister is seeking is already provided for in the amendment.

[Andrew Gwynne]

The shadow Minister would probably have a large degree of sympathy—at least one of her Back Benchers less so—with our updating the Health Act 2006 to allow us to take action to make more places smoke-free. We think that is right. We now have the ambition to make the whole United Kingdom smoke-free, and this is part of that effort.

--- Later in debate ---

[Dr Johnson]

The Minister is being generous with his time. He knows my thoughts on smoking and vaping, particularly in relation to children, and how important I think creating a smoke-free and nicotine-free generation is—although he does not share the second part. He is talking about how the Secretary of State needs to be able to move with the evidence. I completely and utterly agree with that, but the clause says that there is a significant risk that without designation, persons present will be exposed to significant quantities of smoke.

I support the addition of the smoke-free legislation for spaces like playgrounds. If a playground were to be included, the Secretary of State could quite easily justify that by saying that even seeing someone smoking would encourage children to smoke, particularly if it is their parents, and that therefore it is a sensible action to take.

The words—drafted, I believe by the Minister’s predecessors—are “exposure to significant quantities”. “Exposure” does not necessarily mean breathing it in; children could be seeing it across the playground. “Significant quantities” does not necessarily mean a quantity enough to do them harm. If they cannot see it, they are not being exposed to it and it is not doing them harm, why would we want to stop it happening?

[Andrew Gwynne]

The point is that that is open to interpretation; that now runs counter to our ambition to have a smoke-free United Kingdom. We have put in place a much more flexible and workable measure. The measure from 2006 was right for 2006, but it is not right for 2027, when we hope to introduce the Bill. That is why we are looking to the measures in the Bill rather than the measures as they stood in 2006.

Lastly, I remind the shadow Minister that her amendments apply only to the clause in the Bill that relates to England. If we agreed to them, the powers in England would not be consistent with the powers in the rest of the devolved jurisdictions across the United Kingdom. This is a UK-wide Bill that provides a consistent legislative framework for the whole of the United Kingdom—all four nations—while allowing devolved nations to go further on subsequent regulations if they so wish. For these reasons, I ask hon. Members to withdraw their amendments.

Tobacco and Vapes Bill (Twelfth sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Thursday 23rd January 2025 Public Bill Committees

[The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)]

It is good to see you back in the Chair, Mr Dowd. These clauses concern the defences and exemptions to the advertising bans on relevant products—tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products—as set out in clauses 114 to 119, which we have just debated.

Clause 120 sets out three situations in which someone has a defence to the advertising bans. Those are trade adverts, sending information in response to a request and adverts for outside the United Kingdom. The clause sets out that adverts contained only in communications between members of specific, relevant trades in the course of business will have a defence if charged with an offence. For example, a vaping company could send promotional materials to someone responsible for buying products to sell, but that would otherwise be banned if aimed at members of the public. Similarly, a defence exists if the advert is contained in a publication that is not printed or intended to be marketed in the UK. The final defence is that if businesses receive a direct request about their products, they are permitted to respond to that request with material that would legally be considered an advert.

Clause 121 restates existing law that allows specialist tobacconists to advertise specialist products in their shops. Specialist tobacconists will therefore be exempt from the restrictions on advertisements in part 6 of the Bill, provided that their adverts meet certain criteria, such as being visible only inside the shop. The clause empowers the appropriate national authority in each of the devolved Administrations to make regulations to specify what health warnings and information must be included in the adverts. Specialist tobacconists make up a tiny percentage of the market in the UK and are focused on specialist products such as pipes and cigars, and this exemption reflects the specialist nature of the trade carried out by these shops. However, tobacco is a uniquely harmful product, so we will continue to monitor the specialist market closely in case the situation changes.

Clause 122 ensures that no offence is committed under part 6 of the Bill for something that is regulated under the law on displays. For example, displaying a relevant product or the price of the product in accordance with any regulations concerning displays would not be considered an advertisement for the purposes of advertising offences. Without this provision, a display of a relevant product or other material that is permitted may be prohibited as an advertisement. The provision therefore allows for shops to display a vape, subject to the restrictions set out in legislation on their display, without it being considered an advertisement.

However, in the relevant provision for Scotland, the clause refers only to the legislation on the display of the tobacco products themselves and does not include the legislative provision on the display of the prices of the tobacco products. Government amendment 1 has been made to ensure that both are captured when determining whether something is subject to the law relating to displays, as the equivalent provisions do for England, Wales and Northern Ireland. That has been done at the request of the Scottish Government to make the approach in Scotland consistent with that in the other three jurisdictions across the United Kingdom. It is for that reason that the Government commend this amendment and clauses 120 to 122 to the Committee.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

I noticed that Government amendment 1 was included in this grouping. Does the Minister want to talk about it?

[Andrew Gwynne]

I did.

[Dr Johnson]

Oh, sorry. I must have had a moment.

Clause 120 concerns advertising defences. I wanted to ask specifically about the defence relating to the relevant trade communication being directed solely at persons involved in that trade. Does that include adverts within trade magazines? Does it include trade shows and trade stands where these adverts might be visible? Will these adverts or promotions need to be explicitly directed at trade, and will they need to be only visible to trade, or could this actually create a loophole in which there is a suggestion that these are trade magazines, but are actually more widely available than that and therefore provide an advert to the public? How will that work? What if one is doing a trade show in a relatively public venue such as an exhibition centre?

[Andrew Gwynne]

I can answer that very quickly and clearly, because it was set out in my opening speech. I am not sure whether the shadow Minister was fully paying attention, because it also included Government amendment 1, in relation to bringing Scotland into line with the rest of the United Kingdom on these measures. The legislation sets out that adverts contained only in communications made between members of specific relevant trades in the course of business will have a defence if charged with an offence. I think that is pretty clear.

[Dr Johnson]

I understand what the Minister is saying, but if members of a trade body are being spoken to at a trade show, for example, will the people running the show need to make sure that people who are not members of the trade do not come? Sometimes, people may bring other people along with them. Will there need to be provisions to ensure that when that trade show is advertised, it is not done in a way that promotes the product itself? If the show is to happen, people will need to know about it, so how will they find out? This is just about making sure there are no loopholes.

There is also the business of who is publishing and who is distributing. If someone were to design, produce and print leaflets in the belief that they would be distributed abroad, but then someone gave some young delivery chap, perhaps in his teens, some money to deliver them to a group of households, as happens with pizza delivery adverts and such things, the young lad would be committing an offence of which he may or may not be aware. That is no excuse under the law, of course, but the person with greater culpability would be the person who gave him the leaflet. How does the Minister intend the law to be applied in such a situation?

Clause 121 concerns specialist tobacconists. The Minister has been quite consistent on every aspect of this legislation—apart from penalties—in saying that tobacco in all its forms is bad for people and needs to be eliminated, so I am interested in this specialist tobacco exemption. I understand that the advert is going to be available inside the store, and not visible from the outside, and that it will exclude cigarettes and hand-rolling tobacco. I am interested to understand why it will specifically exclude those and not other forms of tobacco. The Minister might say, “That is what the legislation says at the moment, and we want to keep it the same,” but passing new legislation is an opportunity to change things, review what we currently have and decide whether it needs to be different. I am interested in his reasons for that decision.

The clause defines a “specialist tobacconist” as a shop

“more than half of whose sales…derive from the sale of cigars, snuff, pipe tobacco and smoking accessories.”

That would appear to be on the basis of the cost or value of sales. What is the reason for that definition? It may be that that is the existing definition, but has the Minister considered whether specialist tobacconists should be defined according to whether they sell a greater or a lesser amount of such products? Also, we see vape shops on virtually every high street now, so how will the Bill apply to them?

--- Later in debate ---

[Andrew Gwynne]

I thank hon. Members for their questions. The hon. Member for Farnham and Bordon just referred to my smirk, and it was indeed a text from somebody asking whether we should define “clappers” in our guidance as well.

To return to the substance of the Bill, the Government amendment is minor and technical; there was a drafting error, and the Scottish Government have since requested the amendment to correct it and to ensure the regulations and the law, as it appertains to England, Wales and Northern Ireland, will be the same for Scotland.

On the subject of “specialist tobacconists”, let me first make a point of clarification for the shadow Minister and the hon. Member for Farnham and Bordon. We are not saying there is specialist tobacco—there is no such thing. Tobacco is dangerous and uniquely harmful. Tobacco is tobacco. There is nothing specialist about it. A very small number of retailers around the United Kingdom sell niche products; they are specialist tobacconists. That is different to the tobacco being special. There is nothing special about tobacco. The tiny number of retailers that sell things such as pipes and cigars exist in a limited number of places and there are already exemptions in the law for them. As we move towards smoke-free, the reality of market economics means that those specialist tobacconists are not necessarily likely to be around at some stage in the future.

The impact assessment that the Government have provided alongside the Bill makes it very clear. With the measures in the Bill, by 2050—25 years’ time, that is all—we are looking at smoking prevalence in the under-30s being nearly zero. Given that reality, the Government believe that the current exemptions for that small number of retailers will continue. Due to the specialist nature of their trade—they focus on a small number of other tobacco products, such as cigars—they only make up a tiny proportion of the UK market. We know that all tobacco products are harmful, so the Government will, of course, keep a watchful eye on it to make sure that we do not inadvertently grow a new market but, at this stage, we do not believe that will happen.

Specialist tobacconists are not permitted to advertise cigarettes or hand-rolling tobacco because those are the most commonly used types of tobacco. The existing bans on tobacco advertising therefore relate to the sale of those products, whether in specialist tobacconists or the local supermarket, so we are really talking about the advertising exemption for other products. That is a continuation of the existing exemption, which has not caused any issues such as younger people taking up smoking. Any advertising the retailers have cannot be visible from outside the premises. That is really important so that a child walking past one of these random Hogwarts-looking shops that sell a product of which they are hopefully not aware will not ever be attracted to what goes on inside.

[Dr Johnson]

I am pleased that the Minister is considering how shops look from the outside because, when one walks down the high street at the moment, it is not uncommon to find shops where the entire shop window has been turned into a picture of various types of vapes.

[Andrew Gwynne]

Absolutely—I agree with the hon. Lady that how it looks from the outside does matter. That is why, when these exemptions were put into earlier legislation, it was clear that none of the adverts for these niche products could be visible in the shop window from the outside, precisely to protect future generations from ever being enticed to think, “I wonder what a pipe tastes like, or what a cigar is like,” although I am sure the hon. Member for Windsor could, if he chose, give us an hour-long explanation. That is why the legislation is drafted in the way it is. However—and hopefully the industry is listening to this—the Government will, of course, continue to keep an eye on whether this exemption is working in the way that it has previously worked and that we expect it probably will work in the future. If in the future we have evidence that it is not working, the Government can come back and look at it again. However, as things stand, I commend the clauses to the Committee.

Question put and agreed to.

Clause 120 accordingly ordered to stand part of the Bill.

Clause 121 ordered to stand part of the Bill.

Clause 122

Exclusion for advertisements that are displays

--- Later in debate ---

[Andrew Gwynne]

The clauses make it an offence for a person to be involved with a sponsorship agreement where the purpose is to promote in the course of business tobacco products, herbal smoking products, cigarette papers, vaping products or nicotine products. Anyone convicted of an offence under the provisions may be subject to imprisonment, a fine, or both. Tobacco sponsorship is currently banned under the Tobacco Advertising and Promotion Act 2002. There is a long-standing, well-established relationship between tobacco advertising and tobacco consumption.

Clause 124 restates the current position for a person involved in the sponsorship of a tobacco product. We are consolidating existing tobacco legislation in the Bill to provide a coherent narrative for readers, rather than have it spread over lots of different pieces of legislation. A large part of the Bill brings the legislation into one place, so that from Royal Assent onwards, the go-to place for anybody with any questions about tobacco control will be this piece of legislation, rather than it being dispersed across different Acts of Parliament.

Tobacco sponsorship is already banned, but importantly, the Bill expands the offence to include herbal smoking products, cigarette papers, vaping and nicotine products. The restriction will mean that vaping and other nicotine product companies will, for example, not be permitted to sponsor sports teams, which is something that we have seen in recent years. It might upset the hon. Member for Windsor, but I have to say that not a single child should ever be able to look up at their favourite sports stars—people who should be role models—and see them covered in branding for products that are harmful and addictive. That is the point here.

[Dr Johnson]

Would the Minister like to comment on whether many of the athletes may feel uncomfortable wearing shirts with such branding on?

[Andrew Gwynne]

I am sure that many do. That is another important aspect.

--- Later in debate ---

[Andrew Gwynne]

Well, some of them are—the way Man City have been playing this season, I am not quite sure. Anyway, we will get back on to the Bill as quickly as possible.

The ban will apply to agreements entered into after the clause comes into force, two months after Royal Assent. It will be an offence if a contribution is made from either party after the specified date, which will be set out in future regulations. The ban will apply to any agreements entered into after that date, and will therefore not apply to existing contracts. The reason for the two-month period is to provide businesses with advance warning and to prevent them from entering into new agreements.

The hon. Member for South Northamptonshire asked whether this could create a rush to get sponsorship deals in place within that two-month window. That is a fair question, but I think that is unlikely for a number of reasons. First, sponsorship deals are pretty tricky contracts and it tends to take more than two months to reach contractual agreement. Secondly, even if matters were expedited, most clubs already have their deals in place, and they would not replace something when they already have a contractual arrangement for something else. Were that unlikely scenario to play out, we would be looking at only a small number of cases anyway.

When drawing up the regulations, we will have to be careful to ensure that no new contract can be signed, and certainly not for the kind of time period that the shadow Minister set out. That would be really out of the spirit of this legislation and the Government might have to come back to tighten it up further.

[Dr Johnson]

I have a couple of questions about the rush of people trying to get contracts. First, presumably such a contract would not need to start straight away, so one could enter into a sponsorship agreement for some future period. As the Minister said, the sponsorship agreements are done for this season and being negotiated for the next, but presumably that would not stop a business entering into a contract to provide sponsorship for the next season, or even the season after. When the Government brought in VAT on private school fees—I should declare an interest here—they put in a forestalling measure that prevented anyone from entering into a contract to pay them ahead from, I believe, 28 July last year. They seem to be taking a much more lenient approach to the advertisers and sponsors of vaping and nicotine products than they are to parents wishing to pay for their children’s education.

[Andrew Gwynne]

The hon. Lady raises an interesting point; I will take that away and look at it. Perhaps with the exception of the hon. Member for Windsor, everyone on the Committee agrees that we do not want our footballers, rugby stars or athletes to be emblazoned with adverts for vaping products, so the more we can do to tighten up the legislation further, the better.

I will just politely correct the hon. Member for Windsor that the term for someone from the historic County Palatine—including yourself, Mr Dowd—is a Lancastrian. My late father was the Lancashire cricket correspondent, first for Cricket Call, which was a BT paid-for service, and then for BBC North West. He was there in 1990 when Lancashire won both the NatWest and Benson & Hedges cup finals—the double at Lord’s. I still have copies of my late father’s book, “Double Delight”. I would say that they are available at all good booksellers, but they are available from me if the hon. Gentleman wants one.

The hon. Member for Windsor made an important point. I had just come out of secondary school in 1990, which shows how long ago it was, but it was pretty commonplace for tobacco companies to advertise at major sporting events like Lancashire cricket matches and others. The fact is that that was a long time ago, and things have changed for the better. The Benson & Hedges cup final, in cricket of all games, is a thing of the past. Hopefully, at some stage in the near future, we will look back at vape sponsorship of football clubs as a thing of the past, because that is where it deserves to be.

--- Later in debate ---

[Andrew Gwynne]

My hon. Friend sets out a really important point. I am happy to take that away for officials to look at. We want to ensure that companies that currently sponsor sports kits are no longer able to do so, and that sports clubs that have entered into such contracts are not allowed to extend them beyond the dates of their current existence. His brain is much more legalistic than mine, and we do not want the intention behind the law to be circumvented using legal routes that the best lawyers in the land will probably use to try to find a way around it. I will ask my officials to look at that in more detail, because it is a really important point. I hope he accepts that response.

[Dr Johnson]

I understand the point that the hon. Member for Cardiff West is trying to make about a standard clause being that if a contract breaches the law, the contract falls. In clause 125, however, the Minister appears to be giving a company that promotes vapes by sponsorship an opportunity to enter into a contract, before the legislation comes into force, that would be legal afterwards.

[Andrew Gwynne]

The shadow Minister is right. There will be a narrow window in which that will be possible—[Interruption.] She asks why, and it is because once the Bill receives Royal Assent, it will bring in a two-month window. That is how the law is shaped, to give us the scope to get these measures right and ensure that we make the framework as watertight as my hon. Friend the Member for Cardiff West wants. We believe that that is the proportionate way forward. We cannot make retrospective decisions; if contractual arrangements are under way at Royal Assent, an immediate cut-off could leave the Government open to challenge.

Tobacco and Vapes Bill (Eleventh sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Thursday 23rd January 2025 Public Bill Committees

[Dr Johnson]

Clause 100 concerns product safety, which is important. Even when a product is not safe, it should still be as safe as it can be and should contain only those things that are expected. When Lincolnshire police took a sample of vape devices from children from a school in my constituency, they found that many of the vapes contained dangerous ingredients that should not have been in there, including, in one case, I believe, an ingredient banned in the UK for many decades.

Clause 100 is important: the Minister must ensure that items on the market are safe. I come back to the evidence from Dr Laura Squire from the MHRA. She said that licensing a medical product does not mean that it is safe, and that these vapes are not medical products either. I am grateful to the Minister for saying in the last session that he is looking for a new home for the licensing and registration process for vapes and vaping products, because “MHRA-registered” suggests to the consumer that those things are in some way safer and more fully tested than they have been.

Clause 100 suggests very sensible regulation, but it gives the Minister the power to do that without significant oversight, even though the affirmative procedure applies. Since clause 90, all the Bill has done is to confer powers on the Secretary of State to regulate without actually providing a huge amount of detail on the Secretary of State’s intent. One never knows what the intent of a future Secretary of State could be in this regard.

Will the Minister comment on why regulation will be in secondary legislation rather than being detailed in the Bill? I understand the need to be agile and to think quickly to try to stay ahead of an industry that will try to adapt to addict more people to nicotine in other forms, but it would have been possible for the Minister to put much of that detail in the Bill, and to have taken a power in a final clause to amend parts of those regulations by statutory instrument. Most of the intent and most of the regulation would then have been known very quickly, but could be altered and adapted later. Why has the Minister taken the approach that he has, rather than a more up-front approach?

Clause 100(1)(a) requires

“producers or importers to have processes in place”.

Again, this is an important point. Most of these products seem to be made overseas, where of course the UK courts do not have jurisdiction. It is at the point of import, and with regards to the person who is importing, that we may need to be more responsible than with a producer where the items are made overseas.

I also urge the Minister, echoing the point made by my hon. Friend the Member for Farnham and Bordon, to consider online sales. We see already that some regulations that are in place for the real world rather than the virtual world create loopholes for regulations to be circumvented. Clearly, public safety has to be the Government’s first priority. The testing in clause 99 and the product safety regulations in clause 100 are a welcome initiative, but clearly the devil will be in the detail and the detail is not available to us today.

[The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)]

I am sorry that your croakiness is getting the better of you, Sir Roger, but hopefully you will be on fine form tomorrow for the private Member’s Bills—I am not sure whether the Whips on either side of the House are praying for that.

On clauses 99 and 100, I will go through the questions posed by the shadow Minister and the hon. Member for Farnham and Bordon. It is the responsibility of trading standards to test products if they believe a product contains illegal substances or could contain too much nicotine. Trading standards currently test products on an ad-hoc basis, which is contingent on funding. We aim to establish a testing regime to regularly check that products on the shelves are what they say they are. That will support overall enforcement, will ensure that registered products are safe for consumers and will allow retailers, in both brick-and-mortar establishments and online, to have greater clarity about and confidence in the products that they are able to stock to sale.

It is really important to consider online sales as a growing area. These measures have to be taken within the wider context of clauses and measures that we have already debated, in that any product for sale in the United Kingdom, whether in a shop or online, will have to be registered, and any retailer, whether a shop or online, will have to have the appropriate licences in place. There are clear and substantial penalties for breaching those licensing arrangements, and there are real and substantial consequences for selling products that are not in accordance with the descriptions on the registration of those products. When all of that is put into context, and testing is added in, we believe that this will be a robust regime.

--- Later in debate ---

[Dr Johnson]

Clauses 101 and 102 deal with the treatment of, and matters dealt with by, the 2016 tobacco regulations. Again, they provide the Secretary of State with powers to make regulations. Whether or not that will be done well, we are not really sure at this stage.

I understand the point the Minister made in response to the last debate, and it is of course true that regulations can be different in each part of the United Kingdom. In his discussions with Ministers in Wales, Scotland and Northern Ireland, they may have wished to proceed with regulations after the Bill, rather than to put them on the face of the Bill. However, that does not explain why the Minister has chosen to do the same, and I would be grateful if he could explain his choice to make regulations after the Bill, rather than to put them on the face of the Bill, with the power to modify. I ask particularly because we are now into, I think, the 12th consecutive clause that provides powers to regulate and that offers detail only on what any regulations might or might not say, rather than necessarily on what they will say.

In that vein, clause 101 outlines provisions to allow the Secretary of State to make regulations similar to, or corresponding with, the Tobacco and Related Products Regulations 2016. That is to be done under a new regulatory framework, which would seem to be designed to cover gaps that may exist in the powers under those regulations. Subsection (1) says:

“The Secretary of State may by regulations make provision…that is similar to or that corresponds to any provision of the Tobacco and Related Products Regulations 2016…other than Part 7 of those Regulations”.

Part 7 of those regulations deals with electronic cigarette advertising. The Minister may feel that later parts of the Bill will deal adequately with this point, but I would be grateful if he could explain why that part has been taken out. That is not instinctive, because other aspects of those regulations could be too. What is the reason for excluding that part? Otherwise, I have no particular points to make about clauses 101 and 102.

[Andrew Gwynne]

Clause 101 allows the Secretary of State to make regulations similar to any provisions set out in the Tobacco and Related Products Regulations 2016 —the TRPR, which we discussed in our debate on the earlier clauses—thereby amending them if needed.

In 2016, the TRPR implemented the 2014 EU tobacco products directive. The TRPR deals with the manufacture, presentation and sale of tobacco and related products, including herbal products for smoking, nicotine, vapes and refill containers, as well as smokeless and novel tobacco products. However, it does not regulate all products. As we know, new nicotine products such as nicotine pouches have emerged on the market—we discussed such things in our earlier deliberations—and we currently have no powers to change the regulations. We are also limited in what we can do within the existing powers—for example, on vape packaging.

The Bill builds on the TRPR and allows us to go much further, with new powers on, for instance, packaging and flavour requirements, and new registration powers that could be extended to non-nicotine vapes, nicotine pouches, heated tobacco devices and cigarette papers. As we have ascertained, the tobacco and vaping industries are extremely innovative and have previously attempted to circumvent regulations and exploit loopholes. The clause helps to stop them doing that by allowing us to amend the TRPR if necessary.

Clause 102 enables regulations to be made under powers in part 5 of the Bill to amend provisions in the Tobacco and Related Products Regulations that are within scope of those powers. This is a technical provision because, as I said in the previous debate, we have limited powers to amend the TRPR. For instance, if we introduce new vape packaging requirements using powers in the Bill, the clause will allow us to amend the TRPR if necessary, so that the new packaging requirements fit with those imposed under the TRPR.

The shadow Minister raised issues relating to secondary legislation. The technical and detailed nature of many of the Bill’s requirements means that they are not suitable to be put on the face of the Bill. For example, we may need to amend those requirements in response to market changes. It is also necessary to include detail on the circumstances of when products must be recalled, which will change over time.

There is a broader point here: with all the regulations that we propose to bring before Parliament, we want to get the measures right. We have a statutory duty in the Bill to consult before bringing in regulations, which is in part why we are making the measures in the way that we are. Part 7 of the TRPR is excluded because those things will now be in part 6 of the Bill. I commend the clauses to the Committee.

Question put and agreed to.

Clause 101 accordingly ordered to stand part of the Bill.

Clauses 102 to 104 ordered to stand part of the Bill.

Clause 105

Sub-delegation

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Dr Johnson]

Clause 105 states:

“Regulations under this Part may confer discretions.”

I confess that I do not understand what that means. I would be grateful for the Minister’s explanation.

Clause 106 is about the power to make provision binding on the Crown, which we have discussed at some length. My only point is on subsection (4), which clarifies that public servants are still accountable under the regulations. Some may have concerns about the enforcement of regulations within Government bodies. Could the Minister say anything further on that?

Clause 107 gives the Secretary of State power to make amendments to this legislation through regulations. It is quite a broad and flexible position: the Government can remove outdated laws that are inconsistent with new regulations established under the Bill and ensure that the regulatory framework can evolve. To some extent, that makes sense. Again, the Government seem to be keen to ensure that they can stay one step ahead of a very adaptable industry and try to protect the country from nicotine addiction. However, the clause is quite broad. I would be grateful if the Minister could further elaborate on his intent in it.

Clause 108 provides for the consequential removal of section 94 of the Children and Families Act 2014 because it is no longer needed. Clause 109 is about enforcement.

Clause 110 is about the consultation process. The requirement to consult before making regulations promotes transparency and accountability in the decision-making process and allows for adjustments and feedback from various groups, in the same way that line-by-line scrutiny of the Bill allows adjustment in line with discussion. It ensures that regulations are fair and based on a broad range of insights and evidence. However, I would be keen for the consultation not to be so long as to delay bringing in the regulations. As I have said before, much of the Bill hinges on the regulations the Government can provide. If the consultation processes are very long and drawn out, it could be a long time before any of these measures come into force to protect our children, in particular.

[Andrew Gwynne]

Sub-delegation allows functions to be carried out by someone who is not named in the primary legislation. We believe that that is vital for flexible implementation of Government policy and to keep the wheels of Government turning. Sub-delegation is a long-accepted part of the legislative process, and having the ability to allow technical experts to undertake technical tasks, or to set out very detailed technical criteria in guidance instead of using parliamentary resource, will allow us to get on with implementing the measures in part 5 of the Bill.

The shadow Minister is right to be concerned about having safeguards to ensure that any sub-delegation of authority is not abused. Sub-delegation to persons must be set out in regulations. As I have previously said, there is also a statutory duty to consult on any regulations made under part 5. The regulations will be subject to the affirmative procedure, meaning that Parliament will have an opportunity to consider any sub-delegation before the regulations take legal effect.

On the wider consultation the shadow Minister referred to, the Government chose to include consultation clauses because we want valuable input from different stakeholders on our proposals before they are introduced. As is conventional with such clauses in primary legislation, the clause does not prescribe the specific people the Secretary of State must consult. That is to ensure that the Government can consult appropriate stakeholders, and the list may evolve over time.

UK-wide regulations made under part 5 might deal with devolved matters. The UK Government are therefore required to seek consent from the devolved Governments. My Department will continue to work closely with the devolved Governments on proposals for UK-wide regulation of products. I therefore commend the clauses to the Committee.

Question put and agreed to.

Clause 105 accordingly ordered to stand part of the Bill.

Clauses 106 to 113 ordered to stand part of the Bill.

Clause 114

Publishing advertisements

[Dr Johnson]

I beg to move amendment 87, in clause 114, page 63, line 16, after “product,” insert

“except for the public health purpose of promoting vaping as a cessation tool for existing tobacco smokers,”.

This amendment would allow vapes to be promoted as a quit-aid/public health measure.

--- Later in debate ---

[Andrew Gwynne]

I am grateful to hon. Members for our discussion on amendment 87 and subsequent clauses. These amendments intend to make an exemption under the advertisement ban to allow vaping products to be promoted by businesses as a smoking cessation tool for existing tobacco smokers. I am sympathetic to the shadow Minister’s intention behind the amendment to ensure that smokers are encouraged to use vapes as a quit aid. That is why the Bill as drafted will continue to support the promotion of vaping as a quit aid for smokers through the appropriate channels. By “appropriate channels”, I say to the hon. Lady that we mean public health authorities.

[Dr Johnson]

I want to clarify one small point, if I have not made myself completely clear. On a personal level, I do not particularly want people to be persuaded to go from smoking to vaping, because I think it is an alternative addiction that they will get stuck on. I would much prefer them to be directed towards other forms of nicotine replacement therapy, which will be effective and more short lived. However, given that the current medical advice is that vaping is better, I think it is important that it is available.

[Andrew Gwynne]

I get that the shadow Minister is dancing on a pinhead, but she has brought to the Committee a set of amendments for which that would be the purpose. If they are pushed to a vote, I am sure we will have the bewilderment of the shadow Minister yet again abstaining on measures that the shadow Minister has brought before the Committee.

We believe it is for public health authorities to promote vaping as a quit aid for current smokers. For example, local stop smoking services will continue to be able to promote vapes to smokers as a less harmful alternative following the passage of the Bill. We strongly believe that any promotion of vaping as a way to quit smoking is best led and delivered by the appropriate authorities, such as local stop smoking services, public health professionals and the national health service.

The clauses in part 6 of the Bill, taken in totality, will form a complete ban on advertising and sponsorship for tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products, bringing them all in line with tobacco. It is unacceptable that children are exposed to vape adverts on the sides of buses and in shop windows when they make their way to school.

Clauses 114 to 117 make it an offence for anyone

“acting in the course of business”

to publish, design, print or distribute an advertisement

“whose purpose or effect is to promote”

a relevant product within the Bill. Upon conviction, anyone who has committed an offence under part 6 will be liable to a fine, imprisonment or both. These clauses are an essential part of the overall suite of restrictions that will ban advertising of relevant products within the UK. Taken together they will ensure that even if someone has not designed or published an advert, it will still be an offence to print or distribute that advert. This is key to stopping their eventual distribution. I hope that answers the questions about whether there is a loophole allowing adverts produced for international markets to be distributed in the United Kingdom. The distribution of those adverts will be an offence.

Clause 118 makes it an offence to cause the offences I have just set out. It would be an offence if a person “knows or has reason to suspect” that they are causing these things, whereas if someone unknowingly delivered a package containing leaflets, they would not be guilty of the offence. Without this clause, it would be possible to instruct others to publish, design, print or distribute adverts without committing an offence. Clearly, we need to ensure that it is also an offence to cause these things to happen.

Lastly, clause 119 makes it an offence to provide an internet service in the course of a business by means of which an advert for a relevant product is published or distributed. This would mean that an organisation that provides a service to a person—for example, Sky or TalkTalk—would commit an offence if they provided a service that enabled the online advertisements to happen and if they permitted that space to be used to promote relevant products. That could include becoming aware that the service is hosting a vape advert and subsequently failing to take that advert down. This is particularly important, as young people, and some not-so-young—we now know that, if we have a hoof that needs trimming, the hon. Member for Farnham and Bordon is our man, although I am not sure whether he provides the service or just passes the request on—

[Andrew Gwynne]

Clause 119 is important, as children spend a lot of time online and therefore are more exposed to a variety of internet services. It is unacceptable that a child using the internet to study might be exposed to a variety of vape adverts. We need to take action to stop these products being deliberately advertised to children, to protect future generations from becoming hooked on nicotine.

The shadow Minister’s amendments would in theory allow any shops or businesses to advertise vaping products to existing tobacco smokers. It would be incredibly difficult to target the advertisement of vaping products to current smokers alone, without the risk of children and non-smokers seeing the promotional material. That would not only make enforcement complicated, but make the messaging about the ban inconsistent. Research on tobacco advertising bans has shown that comprehensive bans were significantly more effective than partial restrictions in reducing smoking rates.

Hon. Members has posed a number of questions, which I will address. What constitutes an advert and how will the decisions be made? The Advertising Standards Authority is the regulator, and it will take a proportionate approach. All adverts are captured. Decisions on whether something is an advert will be made on a case-by-case basis, and it is for the ASA to decide. If the purpose or effect of something is to promote a product, it will most likely be captured. I say to the hon. Member for Windsor, “Worry not”: the ASA knows how the internet works, because it is dealing with it daily, and as we speak.

How does liability work? The offence will be charged on a case-by-case basis. In most cases, we expect that this will involve a company. The ASA is experienced in making decisions on tobacco restrictions at the moment, and the provision merely extends the powers and responsibilities that it is already undertaking with regard to a variety of other products. On social media influencers, it depends on how the ASA approaches the matter; if it decides that something is constituted as an advert, action can be taken. Nobody is above the law of the United Kingdom.

The hon. Member for Windsor asked why we are making changes to the law without consulting. To be clear, tobacco adverts are already banned under the Tobacco Advertising and Promotion Act 2002, and the provisions in part 6 of the Bill will simply maintain the existing ban on tobacco advertisements. We were elected with a mandate to carry out our manifesto commitments, one of which was to stop the advertising of vapes to children. We already know that the measures to restrict vape advertising are strongly supported: 74% of adults in Great Britain support banning the advertising and promotion of e-cigarettes at point of sale, at the till, in stores and as people enter shops, and only 6% are opposed.

Does aligning vapes with tobacco in this area contribute to misconceptions that vapes are just as harmful as tobacco? Although the approach towards vapes and towards tobacco will align in this area, our future regulations on other vape measures will be carefully considered so that there is a clear difference between these products. Given that vapes are less harmful than tobacco, we do not intend to treat them in exactly the same way as tobacco. To be clear, there is no more dangerous product that is legally sold in our shops than tobacco—a product that kills two thirds of its users—but we do not want to inadvertently addict a new generation to nicotine. That is the reason for the advertising measures.

Will the ban on the advertising of heated tobacco products increase the demand for traditional cigarettes? The Department’s opinion is that heated tobacco products are covered under the 2002 Act, which prohibits the advertisement and sponsorship of tobacco products. The new definition just ensures clarity on the scope of the legislation, as well as future-proofing policy. This is not a new ban; we believe that the existing tobacco advertising ban appertains to heated tobacco products in any case.

We very much want people to give up all forms of tobacco. That is why this Government have invested a further £70 million for smoking cessation services in the new financial year, and why I maintain that, although we are saying to tobacco companies, “This is as good as it gets,” we will move heaven and earth to shrink their customer base even further with appropriate smoking cessation. With that, I ask the shadow Minister to withdraw her amendment, and commend the clauses to the Committee.

[Dr Johnson]

The Minister knows that I believe strongly that we need to stop people smoking, because of its dangers, and that we need to stop children from taking up any form of nicotine, because we have heard how harmful nicotine is to them. He will also be aware of my argument—which I made in relation to the previous iteration of the Bill—that advertising, marketing and sponsorship should be included to reduce the appeal of the products to children. I support the clauses, but I was keen to debate how smoking cessation services will be able to discuss these products. The Minister has been reasonably, if not absolutely, clear on that, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 114 ordered to stand part of the Bill.

Clauses 115 to 119 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Taiwo Owatemi.)

Tobacco and Vapes Bill (Tenth sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Tuesday 21st January 2025 Public Bill Committees

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

It is a pleasure to serve under your chairmanship this afternoon, Mr Dowd.

As we discussed before the adjournment, clause 89 forms part of part 4 of the Bill. It provides the power to Revenue and Customs officers to seize and detain snus. We talked briefly about the time of detention being 48 hours. I was about to ask how one would decide that the amount was suitable to seize.

Clauses 7, 8 and 9 already provide for snus. Clause 7 bans UK manufacture. Clause 8 bans sales in the UK, but not where people buy it abroad or online and import it. Clause 9 covers the possession of snus with intent to supply, but does not give any indication of what sort of volume one would anticipate could lead to supply.

I am aware that when it comes to some illegal drugs, there is a rough and ready reckoning of how much would be considered as being possession with intent to supply and how much as being for personal use. It may be more complicated in this case, however, because the personal use of this product, which it is legal to import, will affect how often one wishes to import it.

For example, it is unlikely that someone who is importing snus for their own personal use would need to make an import on a daily or perhaps even weekly basis. Some people may decide that they are going to do it monthly or annually, which may mean that they are importing quite a sizeable amount that some customs officials may consider as not for personal use, but for supply.

Could the Minister indicate how it will be decided what counts as personal use and how people can prove that? We do not want a loophole that allows people to use this dangerous product.

[The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)]

It is a pleasure to serve under your chairmanship once more, Mr Dowd.

These are of course operational matters for customs officials who already utilise the powers that they have been given in a variety of different forms of legislation. It is common practice for customs officials to seize illicit goods at the border, irrespective of what those illicit goods are. That will now apply to snus.

Border Force officials will decide on a case-by-case basis—on the evidence in front of them in any particular case and on the intelligence that they might have—whether the goods that they have seized are likely to be for personal use. I imagine that given the quantities that would likely be needed, in the case of seizing illicit goods, we would be talking about large quantities of a product that clearly would not be for personal consumption. It would therefore not be unreasonable for Border Force officials to come to the conclusion that the illicit goods that they have seized may well be sold on, which is illegal.

[Dr Johnson]

Will the Minister give way?

[Andrew Gwynne]

I will not. That is pretty clear.

Question put and agreed to.

Clause 89 accordingly ordered to stand part of the Bill.

Clause 90

Retail packaging

Question proposed, That the clause stand part of the Bill.

[Andrew Gwynne]

The clause provides the Secretary of State with powers to make regulations about the retail packaging of vaping, tobacco and nicotine products, as well as cigarette papers and herbal smoking products. It also covers tobacco-related devices. For instance, regulations made under this power could restrict the appearance of packaging, as well as what information is provided on it, its shape and its texture.

Although vapes can be an effective quit aid for adult smokers, vaping is never recommended for children. It risks addiction and unknown long-term health impacts while their lungs and brain are still developing. Despite that clear health advice, there has been a significant and alarming rise in the number of children vaping. There are also reports of increased use of nicotine pouches among children and adolescents. That increased use is partly due to the blatant marketing of vapes to children through brightly coloured packaging and the use of child-friendly images such as cartoons. That is an unacceptable practice that the Government intend to stop.

We have seen the effectiveness of standardising tobacco packaging for youth smoking rates, and the evidence tells us that reduced brand imagery can decrease the appeal of products to children. This clause will allow us to make changes such as banning the use of cartoon characters on packaging and regulating the colours that can be used. The clause also replaces existing regulation-making powers for tobacco packaging, so that the power to regulate all the relevant products is in a single piece of legislation. I therefore commend this clause to the Committee.

[Dr Johnson]

Clause 90 is in part 5, on product and information requirements, and deals with the retail packaging of various products. Clause 90(1) grants the Secretary of State the authority to make regulations concerning the retail packaging of tobacco products, tobacco-related devices, herbal smoking products, cigarette papers, vaping products and nicotine products. This is one provision where tobacco-related devices are included; they have not been previously, in most clauses. The packaging is of the device, which may be supplied separately from a refill, so that is an important addition.

Clause 90(2) specifies that the regulations may include

“prohibitions, requirements or limitations in relation to the production, importation or supply of such products in the course of business.”

That is relevant because a quick search on the internet reveals that although quite a lot of things are prohibited in the UK, including different forms of cigarettes—those with branded packaging, coloured cigarettes and the like—and they may not be legal to sell in this country, it is perfectly possible to go on to a website, buy them in British pounds and have them supplied to one’s home, so there is a clear loophole that needs to be considered.

Subsection (3) outlines particular aspects that the regulations may cover, including the markings on packaging, such as the use of branding, trademarks and logos. I think the use of the word “logo” is key, because if I were to draw a pair of golden arches, people would know what I meant without my needing to write “McDonald’s” next to them, or if I did a little tick, people would know what I meant before I said that it was for Nike. The same is true of various logos, such as for Amazon and others, where the picture has become so well known that the name of the brand is not required to identify it. There is actually a board game that people can buy for their kids to test how good they are at identifying logos. Clearly, brand marketers are very aware of the use of shapes—as well as just the name—for identifying their products.

It is also possible to regulate the information provided on packaging or otherwise supplied with a product and the appearance of packaging. We have seen pretty coloured packaging and packaging designed to entice children with its texture, size and shape. I have seen vape holders that are teddy bear-shaped, so that while someone is not using their vape, they can put it in a teddy bear that comes in a range of colours. They are available on Etsy. It is even possible to regulate the means by which packaging is opened.

Those are useful powers for the Secretary of State to take, but only if he uses them. If he takes them and does not provide any regulations at all, they are worse than useless. Can the Minister explain the timescale in which he expects to perform any consultation required to introduce regulations to the House?

In addition, subsection (3) allows the Secretary of State to address in his or her regulations any packaging features that could distinguish between different brands, the number of individual products in a packet or the quantity of a product in a packet. Products then become standardised items that are less attractive, particularly to children. Subsection (4) specifies that any regulations made under the clause will be subject to the affirmative resolution procedure, meaning that they must be approved by Parliament before coming into force.

The regulations proposed as a result of the Secretary of State’s powers under the clause will build on previous regulations on shape and packaging. We are all aware that the shape, size and appearance of packaging has changed over our lifetimes. Indeed, on 20 May 2016 the UK implemented the Tobacco and Related Products Regulations 2016—the TRPRs—following the European Union’s tobacco products directive 2014/40/EU. The TRPRs form part of the current regulations retained as EU law after Brexit, and they contain a comprehensive set of rules for the regulation of nicotine-containing e-cigarettes and related products, often referred to as vapes.

The TRPRs introduced several important product standards for nicotine-containing vapes, which marked a turning point in how those products are perceived and controlled. Notably, they placed limits on the nicotine strength allowed in e-liquids, restricted the size of refill bottles and tanks, and mandated specific health warnings on the packaging. The packaging requirements were introduced to ensure that customers were fully informed of the risks associated with using nicotine products.

Again, placing the new regulations on top of the old ones will work only if they are properly enforced, and we have all seen examples of them not being properly enforced or followed. Under the current Tobacco and Related Products Regulations, nicotine-containing products such as e-cigarettes and e-liquids are required to carry a mandatory health warning on their packaging. However, the law allows significant flexibility on the colour, shape, style and types of branding used on those products, as we can see in the adverts when we walk down the street. Some of them are smooth-shaped, some are sharp, and some are shaped like SpongeBob SquarePants or teddy bears. There are also various flavours, although we will come to flavours later. The colours, branding and shapes are all part of the advertising to try to make the products attractive to users, and in some cases particularly to children.

The approach to vapes under the current regulations is in stark contrast to the stringent requirements already in place for tobacco packaging, which is covered by the Standardised Packaging of Tobacco Products Regulations 2015. The regulations maintain that cigarettes and hand-rolling tobacco packaging must be plain, with no branding, logos or colours that could attract potential smokers. The stark difference between tobacco and vape packaging raises important questions about how best to protect young people from the growing appeal of vaping products, which are still seen by many as a safer alternative to traditional cigarettes. We must be clear that they may be safer for smokers, but not for children or people who do not smoke.

It is important to understand the context behind clause 90. Before we had formal packaging regulations, cigarettes were sold with little to no concern for public health. Tobacco companies focused primarily on branding and advertising to create an appealing and recognisable product. The early 20th century saw the rise of the iconic cigarette brands, each seeking to distinguish itself through distinctive packaging designs. Often vibrant, colourful and glamorous—as we are seeing with vapes—they were designed to entice new customers, including young people, and to create a sense of status or sophistication.

Cigarette packaging became a key component of the advertising strategy, with slogans, logos and images intended to convey a lifestyle associated with smoking. Of course, a young person attracted to them would have bought that packet, carried it and shown it to their friends. The packaging would form part of the attraction of the product, and encouraged people to take on a product that we would not have wanted them to. There were no health warnings at that time, and little was done to inform the public of the dangers associated with smoking. That persisted for many years until the latter half of the 20th century. As Members will be aware, throughout the history of tobacco advertising, characters and mascots have played a significant role. These often colourful, friendly and appealing figures, designed to make smoking appear safe, desirable and even fun, were found on the packets.

--- Later in debate ---

[Andrew Gwynne]

The shadow Minister is making a really compelling argument, but it would be best saved for the Delegated Legislation Committee following the consultation, so that we know exactly what the Government are proposing. She is setting out a resounding argument for different measures, but that is not of course what the clause sets out. It gives Ministers the power to consult and to bring secondary legislation to a future Delegated Legislation Committee. That is where the shadow Minister should be making these absolutely superb arguments, but we need the powers first.

[Dr Johnson]

With respect, it is unwise to give someone the power to do something you do not want them to do.

[Andrew Gwynne]

But you do want us to do it.

[The Chair]

Order. The Minister should address Members through the Chair.

[Dr Johnson]

Thank you, Mr Dowd—I am sure you have no opinion on this matter, as you are impartial.

Before giving powers under clause 90 to change packaging and make packaging regulations, it is important that we understand the Minister’s intention. Is it to strengthen or to weaken?

[Andrew Gwynne]

If the shadow Minister is seriously saying that the Government are bringing forward measures to weaken existing provision, she is living in cloud cuckoo land. She does not need to ask me or, through me, the Secretary of State whether it is our intention to weaken the provisions; it absolutely is not. It is in our manifesto that we would bring them in. We want to strengthen the measures. The shadow Minister actually needs to ask Opposition Members whether they would use the powers to weaken those measures. That is not a question for me; it is one on which she has to tussle with the Leader of the Opposition and with Opposition Back Benchers on the Committee.

[Dr Johnson]

I thank the Minister for his intervention, but the Labour manifesto is not necessarily a document on which one can rely. I do not seem to recall its saying that the Government were going to take the winter fuel allowance from old people. I will not test your patience, Mr Dowd, by giving other examples of where the Labour manifesto did not reflect what the Government went on to do, but the point has been made.

One of the key issues from the public consultation on the Bill, which is therefore relevant to clause 90, is the growing concern and mounting evidence about vape packaging and the need to prevent products from appealing to children. The consultation paper issued by the Government expressed a clear desire to ensure that no vape packaging or vape devices should target young people. The Khan review, which was done under the last Government, recommended that restrictions be placed on packaging images and descriptions to ensure that vapes did not appeal to children.

In that vein, the Government have suggested that they will ban the use of cartoon characters, animal images, images of inanimate objects and other child- friendly visuals used on packaging and devices, recalling the infamous tobacco mascots of times gone by. By implementing such a measure, I believe that the Government aim to reduce the attractiveness of such products to children, acknowledging that current marketing practices may be encouraging the use of such products among young people who have never smoked.

A quick online search can dig up all sorts of vapes and vape paraphernalia clearly targeted at children. Vape packets with SpongeBob SquarePants, Mario Kart characters and other cartoon characters can be found online. I have listened to children who have said that they have discussed which vape they should have to match the outfit they are wearing at a particular event.

There is significant public support for stricter regulation of vape packaging. A 2023 public opinion survey commissioned by Action on Smoking and Health found that 76% of adults in England are in favour of limiting the use of sweet names, cartoons and bright colours on vape packaging. That shows that there is widespread concern among the public about the need for stronger safeguards to protect young people from becoming regular users of nicotine products.

The call for limiting the appeal of vape products to children is in line with broader efforts to tackle young vaping, which has become a growing public health issue in recent years, but public opinion is not the only factor that should drive the changes to packaging. The Government’s concern over youth vaping is also reflected in their efforts to develop a comprehensive regulatory approach. In addition to restricting the use of child-friendly images on packaging, there are other, broader changes, which I will not go into now.

The packaging of vaping products is not just a cosmetic issue. The clause talks about cosmetic things such as what materials can be used, what packages can look like, how big they are or what shape they can be, but those have real implications for public health. By regulating the appearance and branding of these products, we can significantly influence how they are perceived by the public and, most importantly, younger audiences. The goal of the regulatory measures has to be to strike a balance between ensuring that vaping remains available as a harm-reduction tool for adults trying to quit and reducing the risks associated with its increasing appeal to young people.

That delicate balance requires careful consideration and ongoing dialogue between health experts, industry stakeholders and the public. As the Minister pursues such consultation—if he is given the powers under clause 90—I hope that he will consider the matter of flexibility and the way in which the businesses tend to evolve, and that he will future-proof the regulations. The UK Government have taken an important step in recognising the potential risks posed by packaging and are actively working to mitigate those risks through public consultations, policy papers and regulatory changes. However, that is only the beginning. To effectively address the challenges posed by vaping, further measures will need to be introduced not just on packaging, but in relation to other matters, which we will come to later.

We have made the case for why we should consider giving the Secretary of State or Ministers the powers to regulate retail packaging. However, the question is what impact that will have. Will it have a big or small impact, and will we be putting a large amount of regulation on to businesses for minimal effect and increased cost? Will this make a big difference? The Government have produced an impact assessment of the measures in clause 90 and their desired outcome. It says that the appeal of vapes to children, and the subsequent number who go on to vape, is expected to reduce with the restriction of packaging presentation. Such restriction would therefore result in overall health benefits to our young people due to a reduction in vaping uptake and associated harms.

Moreover, such a decrease in vaping uptake and associated usage among young people is recognised in the impact assessment as also being potentially beneficial for the environment because of a reduction in the anticipated litter from vape-related packaging. Indeed, a litter pick with volunteers from Sleaford a little while ago drew my attention to the harm that vape-related waste is having on our environment. Again, in considering the material of packaging, the Minister may want to think about any environmental hazard posed, which is something that he can mandate under clause 90(3)(d) to ensure that the packaging is to a standard that helps to reduce the effect on the environment.

Furthermore, the impact assessment highlights that the illicit vape market has been increasing and suggests that it could be exacerbated if these powers were implemented. However, it could also be argued that more appropriate packaging restrictions could assist in distinguishing between compliant and illicit vape products, depending on how the regulations were brought forward. They could make it arguably more difficult to discretely stock, advertise or sell such illicit products, and easier to identify and tackle illegality in the sector. It is recognised that packaging-related restrictions are expected to reduce the number of children and adults vaping, thus reducing the profits for manufacturers and stockers because of packaging presentation.

The impact assessment also sets out that such measures are not expected to prohibit or affect the abilities of vape consumers themselves in making choices based on their own preferences or in purchasing the products they wish to consume. If one is already a vape customer, or one is a smoker wishing to stop, packaging will not have an effect, but it may well reduce the likelihood that children start vaping, which is a good thing. Consumers are free to engage in purchasing and consuming such products as they wish, albeit that by being in different packaging, it is less appealing to children and young people.

Although no studies have shown the real-world impact of standardised packaging for vaping products, evidence from experimental studies suggests that plain packaging may reduce the appeal of vaping products among young people. There is research in the impact assessment about standard olive-coloured packaging—I am not sure whether that is a green olive or a darker olive—in comparison with branded packaging. It found that young people aged 11 to 18 had a lower interest in trying vapes in standard packaging but there was no difference among adult respondents between the branded and plain standardised products. Research from King’s College London and Action on Smoking and Health shows that different effect, with young people being more likely to attracted by the packaging than adults.

A recent study also looked at a cross-sectional online survey to explore interest in the perceived harms of vaping products when it comes to packaging. The study found that not only did young people aged 16 to 19 in England, Canada and the US find e-liquids in white or olive-coloured standardised packaging less appealing compared with those in branded vape packaging, but that they inaccurately perceived e-liquids in that standardised packaging as being equally or more harmful than smoking, compared with e-liquids in branded packaging. Again, there is evidence that packaging influences children’s decisions. If they look at something in a plain packet, they are more likely to think it is not good for them than if they see it in a packet with Mario Kart or a teddy bear on it. I know that is instinctive, but the evidence also bears it out, as seen in the Government’s impact assessment.

I am interested to know how clause 90 differs from existing legislation, particularly on tobacco products. It is my understanding that under the Standardised Packaging of Tobacco Products Regulations 2015, which came into effect on 20 May 2017, all products—including cigarettes, rolling tobacco and snuff—must be sold in standard packaging. The use of logos, trademarks and branding has been severely restricted and tobacco packaging must display the product name in standard font and size without any distinctive logos, colours or images.

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[Andrew Gwynne]

We have had a good debate on clause 90—that is all we are up to.

To answer why this is an issue, unlike standardised cigarette packaging, vape packaging can—as we have already heard—come in many different colours, styles, and shapes. The previous call for evidence that the shadow Minister referred to showed that this increases the appeal of vapes to children, and it can encourage them to start vaping. That is what we want to crack down on with this clause.

A number of Members have asked why we are extending the provisions, given that tobacco packaging is already standardised. Only cigarettes and hand-rolled tobacco are subject to the most stringent regulations. This includes standardised packaging, specified packet shape, amount within packs, material, colour and appearance requirements, and so on. In England, around five times more people smoke other tobacco products, such as cigars, than a decade ago. There has been an increase in that consumption and we are committed to addressing this, which is why we are extending the measures to other tobacco products.

In terms of requiring dissuasive messages, of course, these are things that we can look at in the future—it is not something that we are looking at now. We will be mandating pack inserts for cigarettes and hand-rolled tobacco packaging, and we will be running a call for evidence on standardising the packaging of all other products. The shadow Minister, the hon. Member for Sleaford and North Hykeham, asked whether the Secretary of State or Ministers will use the powers. We are coming to Parliament with this landmark Tobacco and Vapes Bill, as we committed to in our manifesto, precisely because we want to use these powers. We are seeking these powers. The Scottish Ministers, the Welsh Ministers, and the Northern Ireland Minister are seeking these powers precisely because we all want to use them to tackle the scourge of youth vaping and move our country to smokefree 2030. Our manifesto committed to stopping vapes being branded to appeal to children, and the Bill provides new regulation-making powers to make this commitment a reality.

As has been alluded to, Members have asked over the course of our deliberations why the restrictions are not on the face of the Bill. In particular, the shadow Minister has gone into the level of detail that we will go into when the regulations are brought before the House, following consultation. My answer is that the technical and detailed nature of the requirements means that they are not suitable to be put on the face of the Bill. We might need to amend the requirements in response to future developments in the market, and scientific knowledge and evidence may change, which means that we will have to react where appropriate. It might also be necessary to gather further evidence post-implementation—this is precisely the point that the hon. Member for Farnham and Bordon made about ensuring that everything is evidence-based, that the data is there and that we scrutinise it, rightly. We may well come to decide that our regulations are the wrong regulations, or that they were the right regulations three years ago, but now need to be changed. That is the why the powers in the Bill are permissive.

It is also important to gather information about the effectiveness of the packaging regulations, to see whether they have indeed discouraged youth vaping. All the evidence from other jurisdictions that do this suggests that they will; however, we need to ensure that the evidence is relevant to the United Kingdom. We will also need to keep a close eye on what happens to adult vapers, particularly those who want to stop smoking, and whether vapes remain accessible to adults who are trying to quit smoking, which is something we need to be clear about.

To be clear, the requirements for vape packaging are yet to be determined, as I said in an intervention on the shadow Minister. The proposed restrictions will be subject to consultation, to ensure that any unintended consequences on adult smoking rates are considered. Research suggests that neutral packaging can remove appeal to youth without being dissuasive to adult smokers—the point made in the information from Cancer Research UK, which the hon. Member for South Northamptonshire rightly raised. Further analysis and consultation will take place before any regulations are made, because we absolutely want to get this right.

It is crucial that we do not rush into this, but have measures that are proportionate and workable, and that there are no unintended consequences. That is why there will be a transition period for businesses before any new regulations come into force, and the length of the transition will be considered as part of the consultation process. This is a balance to be struck between acting quickly to curb youth vaping and carefully considering unintended consequences on smoking rates, in order to ensure the most impactful change possible. That is why we have included a statutory duty to consult, to ensure that the relevant stakeholders are engaged, and to consider their responses and insights as regulations are developed.

Of course, we will provide more information about the timeline for our secondary regulation programme once we have Royal Assent, but let me make it clear to all members of the Committee that it is our intention to move at pace. We want to use these powers, so we want to make sure that, once the Bill becomes law, we start the process of getting the relevant regulations in place, especially for smokefree, because although many of the measures in the Bill will come into force on 1 January 2027, some regulations might be done beyond that date. We will have a lot of work to do in secondary legislation, to get the measures in the Bill—which we hope will all be approved in the course of our deliberations prior to Royal Assent—so that we can hit the ground running and get to 1 January 2027 smoke-free.

[Dr Johnson]

I am glad to hear that the Minister wants to use the regulations and strengthen the regulation around vaping—although I appreciate that that is not the view of the entire Committee—but he is talking about 1 January 2027, which is almost two full years away. Does he anticipate that the packaging regulations will come in before or after the legislation on the smoke-free generation?

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[Andrew Gwynne]

I am grateful to the Committee for this discussion. Amendment 5 and new clause 1 require the Secretary of State to consult on regulations to introduce health warnings on cigarettes and cigarette papers. I am sympathetic towards the aim of the amendments, which encourage current smokers to quit by providing them with information on the harms of tobacco.

However, the UK already has some of the most stringent regulations in the world on tobacco packaging, which emphasise the heath harms of tobacco. That includes the requirement for plain packaging and graphic picture warnings on the outside of cigarette packs. A post-implementation review published in 2022 stated that these measures still remain effective in helping smokers to quit and in deterring children from taking up the habit. As set out in our response on 5 November 2024 to the consultation on tobacco pack inserts, we will implement positive quit-themed health messaging into the packaging of cigarettes and hand-rolled tobacco. That could contribute up to 150,000 additional quit attempts and 30,000 successful quits over two years.

We are also going further. We will look to extend the legislation on pack inserts to cover all tobacco products, tobacco-related devices, cigarette papers and herbal smoking products. To do that, we are running a call for evidence on standardised packaging to consider introducing more stringent packaging requirements for the different tobacco-related product types wherever possible.

On pack inserts in particular, my hon. Friend the Member for City of Durham asked about implementation. Of course, we are working to implement that as soon as we can, but only after engagement with relevant stakeholders, as I said in the previous debates. We will consult on the final specifications before laying the legislation before Parliament. There is a lot of clapping going on; this is something else on which we will be working like the clappers to get over the line. I hope that reassures my hon. Friend that pack inserts are a priority for the Government. We will move at pace to get that done.

On a technical note to my hon. Friend’s amendments, the Bill restates the existing power to make regulations on the appearance of tobacco products, including cigarette sticks. Not only that: it goes further and extends that power to other products, including cigarette papers. We therefore do not believe that the amendments are required to bring in dissuasive messages on cigarettes, because the powers already exist in this Bill should Ministers seek to consult in the future and bring forward secondary legislation.

While it is not our plan to introduce dissuasive messages on cigarettes at this time, because we already have strong health warning measures in place, we will continue to monitor the evidence. As has rightly been said, we want to be evidence-led in the measures we seek to introduce. I want to see the success of such measures in Canada and elsewhere so that we can use that evidence at a future stage.

While my hon. Friend the Member for City of Durham has indicated that she will withdraw the amendments, I hope I have given her some reassurance that the amendments are not needed because we have the powers to do precisely what she wants to do. At some stage in the future, a Minister—it may or may not be me—may come forward with secondary legislation following a consultation.

[Dr Johnson]

The Minister has been clear that he believes he has the power under clause 91 to put the messages on the cigarettes if he chooses to, which is interesting to note. Will he clarify whether that remains the case with information inserts? The clause refers to the appearance of the products, the shape and the messaging. Will it include pack inserts?

[Andrew Gwynne]

What the amendments seek to do is to put the messages on cigarettes themselves. Those powers exist in the Bill. I do not understand what the shadow Minister is talking about, because pack insert measures are happening: we will be moving at pace to ensure that they are further consulted on, that legislation is brought to Parliament and that we get the pack inserts in place. As far as dissuasive cigarettes are concerned, that is not our intention at this stage, but powers exist in the Bill for a Minister to consult and bring forward secondary legislation to put health warnings on individual cigarettes should Parliament and Government decide that that is the right thing to do.

Clause 91, included in part 5, provides the Secretary of State with the powers to make regulations about the future of vaping products, tobacco products, tobacco-related devices and nicotine products as well as cigarette papers and herbal smoking products. The clause would allow the Secretary of State to regulate what information should be provided on a product as well as the size, shape and appearance of a product.

It is vital that we reduce the appeal of harmful and addictive products to children. A key part of that is through how these products appear themselves. There are currently no limits whatever on what a vape can look like. As we heard in evidence, there are vapes that look like highlighter pens and computer pen drives. There are vapes that look like mobile phones. There are vapes that are concealed in hoodies so people can vape through the string of the hoodie. These are pernicious attempts to hook young children and adolescents on nicotine products. That is why the measures are so crucial.

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[Dr Johnson]

We had a little search at lunch time and found some examples that may contravene the law. Can the Minister advise to where we should refer those for enforcement?

[Andrew Gwynne]

Of course, trading standards enforces the sale of these things, so if the hon. Lady has concerns about particular products being sold in the online sphere, the first port of call is trading standards, which can investigate and take the appropriate action.

Regarding enforcement of online sales, the Bill enables Ministers in England, Wales and Northern Ireland to introduce the licensing scheme that we have already debated for retail sale, including online retail sale, of tobacco, vapes and nicotine products. Penalties will be capable of being brought against retailers who do not adhere to sales regulations. Obviously, as we have discussed —I do not want to tread on old ground—we will consult on the details of the licensing scheme before regulations are laid. Moreover, in the financial year 2025-26, this Government will invest a total of £30 million of new funding for the enforcement agencies, including trading standards, His Majesty’s Revenue and Customs and Border Force, to tackle illicit and under-age sales of tobacco and vapes, supporting the implementation of measures in the Bill.

The hon. Member for Farnham and Bordon rightly raised some concerns about how long manufacturers and retailers will have to implement the changes. There will be a transition period for businesses before any of the new regulations come into force. The length of the transition will be considered as part of the consultation exercise. There is clearly a balance to be struck between acting quickly to curb youth vaping and carefully considering the unintended consequences that we are all worried about. That is why these measures are a proportionate step. However, let me be clear that we will not stand idly by while industry knowingly and deliberately encourages children to use a product that will addict them to nicotine. Industry has failed to self-regulate. The fact that a quarter—25%—of all children aged between 11 and 15 have vaped shows that self-regulation has failed. We must now intervene to ensure that this can no longer happen—or get worse.

We are not banning the sale or manufacture of vapes; rather, we are ensuring that all the measures that we are talking about happen in a proportionate way that seeks to remove the harm and risk to our children and future generations. However, let me be clear that industry self-regulation has failed. That is why I call on hon. Members to support clause 91.

[Andrew Gwynne]

This clause provides the Secretary of State with powers to regulate substances, and the amount of a substance, used in vaping products, tobacco products, tobacco-related devices, nicotine products, cigarette papers and herbal smoking products.

We know that the use of tobacco products and herbal smoking products can increase when they are flavoured or are used alongside flavour accessories. For instance, menthol cigarettes appeal to young people because, compared with non-menthol cigarettes, they make it easier and less harsh to inhale smoke. That is why the sale of menthol-flavoured cigarettes was rightly banned in May 2020 by the previous Government, and I give credit to them for moving on that issue.

It is therefore very concerning that industry has used the same tactics for vaping and nicotine products. Research shows that children are attracted to the fruit and sweet flavours of vapes, both in their taste and smell, as well as how they are described. We have heard a lot over the past few weeks, particularly from the shadow Minister, as well as from others, about flavours such as gummy bear and rainbow burst. Unicorn milkshake was another favourite of the shadow Minister—not that I am suggesting that she vapes, just that it is one of her favourites to refer to.

[Dr Johnson]

I would rather the Minister said that it was a flavour I have commonly referred to than a favourite flavour, because I honestly cannot tell him what a unicorn’s milk tastes like.

[Andrew Gwynne]

I would not have a clue either, because I am one of those boring individuals who has neither smoked nor vaped. I am now 50 years old, and I do not intend to start either in my next half century—now that I have had my liver check, I know that I am going to live for the next half century.

There is no reason why flavours such as gummy bear, rainbow burst or unicorn milkshake should be made available. They clearly target one audience, and one audience only: children. We cannot let industry repeat the same tactics it used to hook a generation of children on cigarettes by enticing the next generation to start and continue vaping.

Furthermore, some specific substances can increase the risk of harm to users and must be properly regulated or banned completely. Equally, any tobacco accessory that imparts flavour should also be banned. The clause will mean that the Secretary of State can close the current loophole.

However, we recognise that vape flavours can be a consideration for some adult smokers, as was mentioned earlier, and particularly those seeking to quit smoking. To avoid any unintended consequences, the scope of future restrictions will have to be carefully considered, with a statutory duty to consult on any proposed restriction, to ensure that we get the balance right.

What we do not want to do is dissuade people for whom vaping is the best stop smoking tool from stopping smoking. The advice of the chief medical officers of the four nations was clear: “If you smoke, it is safer to vape. If you are a child, you should never vape and never smoke. If you are a non-smoker, the same is true: never vape, never smoke.” We have to ensure that we do not throw out the baby with the bathwater and revert those who we wish to stop smoking back to smoking.

That point has to be carefully considered when the consultation and the secondary legislation comes before Parliament, but let me make it clear: we will not allow these child-friendly flavours that are blatantly in existence for one purpose only, which is not to stop adults smoking; it is to hook kids on nicotine. That has to stop, and that will stop.

[Dr Johnson]

Does the Minister want to comment on the range of flavours available, and whether he thinks that has any impact?

[Andrew Gwynne]

It absolutely does. That is why these powers are framed in the way they are. It is something that the Secretary of State and Ministers, when considering the balance that I have just talked about, may well take into consideration. We still want vaping to be accessible and available to people as a stop smoking tool. We recognise that one of the attractions of vapes over cigarettes is that they tend to taste nicer—or so I am told. If cigarettes taste anything like how they smell, I can understand why that is the case.

What we do not want to do is create a loophole that retains the attractiveness of vapes to children. The range of flavours will also have to be considered in any future consultation so that there are no unintended consequences. We must get the balance right and stop these awful products being promoted to kids in the most pernicious way while respecting the fact that for a number of people, vapes are a route out of smoking. With that, I commend the clause to the Committee.

[Dr Johnson]

I am grateful to the Minister for setting out aspects of the clause, and particularly for his passionate speech making clear that he wants to see vaping among children stop. When I first brought forward on the Floor of the House measures on vaping, it was with the intention of protecting children from the rapidly rising trend before they became hooked on a form of nicotine. I am grateful that the Minister seems to share the same passion for protecting children; that is good to see.

Clause 92 deals with the contents and flavour of tobacco, vaping and nicotine products. It provides for the Secretary of State to make regulations on the flavour of relevant products and the substances that may be included and their amount in any relevant tobacco, vape or nicotine product.

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[Andrew Gwynne]

Let me start with the point made by the hon. Member for South Northamptonshire on the need for agility. I have argued in respect to a number of clauses that we have to be agile. That is why the Bill is permissive in nature. It grants powers to Ministers to consult and bring forward secondary legislation at further stages. It also allows Ministers to amend the regulations, if set, or to introduce new ones if not at a future date, without having to go back through the primary legislation processes, to make the Bill always fit for purpose and for the future.

That is the case in clause 92. As I said in opening, we recognise that vape flavours are an important consideration for adult smokers seeking to quit smoking. To avoid unintended consequences on adult smoking rates, the scope and impact of any future restrictions will have to be carefully considered by Parliament, following consultation, in secondary legislation. We will consult further on any regulations on flavours before they are laid in Parliament. This is really important—I can assure Members that we are not saying here and now what the changes are likely to be. We want them to be considered based on the evidence and consultation, because we want to get the balance right between preventing youth vaping and not having the unintended consequence of pushing people away from vapes as a smoking cessation tool, thereby missing our ambition for Smokefree 2030.

[Dr Johnson]

Can the Minister give us some timescales for the consultation and explain the various details that it will add to the consultation done by the previous Government?

[Andrew Gwynne]

Again, the shadow Minister is skipping ahead of herself. We have to get these powers through Parliament. I cannot tell her the scope or extent of the consultation, the consultees, or the nature of the restrictions we may seek to bring before Members, because Ministers do not have those powers yet. All I can do is give her assurances that these matters will be looked at, at speed and within good time, to bring a set of regulations before a Delegated Legislation Committee in due course.

We want to get the balance right, as Members across the House have amplified not just in this debate but throughout the course of proceedings on the Bill, because these are big changes, and they are landmark changes. If we get them right, they will do everything we aspire the Bill to do not just in tackling child and youth vaping, but reaching a Smokefree 2030. If we get them wrong, we could end up with smoking rates increasing, which is not what we want to see. We could see children starting to smoke again, which is absolutely not what we want to see. We could see all the work done in recent decades start to be undone. That is not the ambition or aim of the Bill. The aim and ambition of the Bill is to make smoking history and crack down on the scourge of youth vaping. I believe that if we get the regulations right, we will meet that aim. That is a good thing.

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[Andrew Gwynne]

Again, that is the beauty of the permissive nature of this Bill. Where loopholes are being exploited, Ministers will be able to come back to Parliament with a simple piece of secondary legislation, through a Delegated Legislation Committee. The shadow Minister said that secondary legislation does not quite get the scrutiny of a Bill, but it does get up to 90 minutes —I am sure she would find it easy enough to fill that. There is therefore scrutiny of secondary legislation.

We are very aware of this issue, which is why I have signed off the anti-youth vaping campaign on TikTok, which will hopefully be going out fairly soon.

[Dr Johnson]

I welcome the steps that the Minister is taking on social media platforms to discourage young people from vaping; that is a very welcome intervention. Given that he has appeared in LADbible articles, I am curious to know whether he will appear in the TikTok videos. I do not have a TikTok account, but it might almost be worth joining to watch them—I think that would be great.

How does clause 94 relate to the advertising clauses, which we have not discussed yet but will discuss later? Presumably, if an influencer is receiving revenue, they are effectively advertising a product.

[Andrew Gwynne]

I am not sure whether my social media clips from this Committee or any other parliamentary proceedings are quite made for TikTok, but who knows?

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[Andrew Gwynne]

The clause allows the Secretary of State to make regulations to establish a register for tobacco, vaping and nicotine products for their permitted supply in the UK. That will improve the existing regime, which has separate notification processes for tobacco products and nicotine vapes. Non-nicotine vapes and other nicotine products are not currently required to be notified. The clause will give the Government the power to establish a registration scheme covering all these products.

Currently, before they can sell nicotine vapes and tobacco products on the UK market, producers must notify their products to the relevant authority. For nicotine vapes, that is the Medicines and Healthcare products Regulatory Agency, or MHRA, and for tobacco products it is the Department of Health and Social Care. That is meant to help to ensure that products comply with our regulations and that retailers are confident that they are selling notified and regulated products. However, there are weaknesses with those systems, and both fail to support enforcement agencies adequately. The clause allows us to establish a more robust scheme for the registration of products. The details of the scheme will be set out in regulations and subject to consultation.

However, in future, if a trading standards officer found a product to be different from its registration details, that product could be eligible for removal from the register until the information is updated. That will greatly improve the confidence of enforcement agencies in addressing issues with non-compliance. Unless they are well regulated, these products can be harmful, particularly for young people. Establishing a new registration system will play an important part in compliance to make sure that products meet the regulatory requirements and are safe for consumers, and it will improve retailer confidence in the products they are selling. I therefore commend the clause to the Committee.

[Dr Johnson]

Clause 95 relates to the registration and information requirements of the relevant products. The Tobacco and Related Products Regulations 2016 require producers to notify the Government when they place or intend to place nicotine-containing vapes in refill containers and tobacco products in the UK market. Regulation 31 deals with refill containers and regulation 22 deals with tobacco products. Producers must make their submissions to DHSC for products to be sold in England, whereas in Scotland, the Medicine and Healthcare products Regulatory Agency is responsible for publishing these notifications.

Is the MHRA the right organisation for this? We heard in evidence that when some consumers see that a product has been regulated by the Medicine and Healthcare products Regulatory Agency, they believe the product to have been medically tested for safety, which is not the case. They are not tested to the same standard as the other products that the MHRA tests, such as medicines to be prescribed by the doctor or chemist. It is misleading; I wonder whether the Minister also thinks it is misleading. In her evidence, Dr Laura Squire said that it concerned her. For Northern Ireland, the EU common entry gate for producers can be used to place products on the Northern Ireland market. The notification does not currently apply to nicotine-containing vapes and refill containers, so this clause is an improvement.

Clause 95(1) allows the Secretary of State to make regulations to establish a register for products such as tobacco products, tobacco-related devices, herbal smoking products, cigarette papers, vaping products and nicotine products. Subsection (2) provides that these regulations

“may impose prohibitions or limitations on the supply of an unregistered product in the course of business.”

Subsection (3) outlines the matters that the regulations may address, including who will maintain the register, who will be eligible to be registered, and the need for producers to provide information to the registrar. Regulations may also cover the content of the register, the expiry, renewal, cancellation or suspension of a product’s registration, and the publication of the register. Furthermore, the regulations may set fees for registration or continued registration, which could be used to cover the cost of administering the provisions.

We heard in evidence that although products are registered, there is no ongoing monitoring of those registered products. We have seen examples where even supermarkets have been selling products that did not meet the requirements of notification. What will the Minister do to ensure that the regulations he produces can be adequately adhered to and enforced?

Subsection (4) specifies that regulations made under the clause may require producers to provide various types of information, such as reasons for including ingredients in a product, images of the product or its packaging, information about the risks, details about substances released into the body, information about the producer’s operations, and details about any nominated responsible person. That all sounds sensible, but we are asking the industry to mark its own homework. I wonder if the Minister has any comments on how reliable industry-provided information might be on some of these, particularly in relation to risk, because the history of the industry is not strong in that area.

Subsection (5) clarifies that the regulations may allow the retention of payment of register fees into the Consolidated Fund, which we discussed last week. Subsection (6) reiterates that the regulations made under the clause will be subject to the affirmative resolution procedure, which we have also talked about.

What is the rationale for the intervention in this clause? As I understand it, to support a compliant market, it is important that we have products that are registered and can be shown to meet the regulations. This clause will help to ensure that legitimate products are available to sale and will let retailers know what the products are.

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[Dr Johnson]

I am suggesting that there is a difference between regulating a product as a medicine, which requires stringent steps, and a statement of what the product does, the effect it is going to have on the body, the claims made about it, and why it is safe, or safer than having the problem that it is treating. Some drugs make people quite unwell but people are willing to trade off being unwell for being cured. For example, cancer drugs make people very poorly at times, but it is considered better to have chemotherapy than cancer, because cancer leads to fatality. That process lets a consumer know that the product has been robustly tested and that the quality is there. On an ongoing basis, someone is checking that the paracetamol bought from a supermarket contains the ingredients that it says it contains on the packet. This notification process does not do that. It says to a company, “Come along and tell us what’s in it. We’ll believe you. Thank you very much. We’re not going to check and we’ll hope it’s all right.” That is a weak process.

It is not surprising that there is a weaker process for a consumer product than for a medical product. However, having it also done by the MHRA could lead consumers to believe that the vapes have gone through the first process and not the second process. I think that is misleading—some of the Minister’s hon. Friends are nodding vigorously—and was something brought up by the MHRA itself in response to, I think, my question. The MHRA answered that this could mislead consumers to think that it is medical regulation of vapes when it is not. There is only a point in having a register if it will be used to achieve something. Having a list of stuff does not make a great deal of difference if no one is going to check that the list is accurate, and I cannot see that there is any great step to say that the list is accurate. What comes with a register is important, as well as the register itself.

The rationale, as I understand it, of the register is to support the compliant market by having products registered and shown to be meeting the regulations. Again, I understand that this registers that a company has said that it complies with the regulations but I cannot see where the provisions say that there is anyone checking. That may be something that the Minister will add, maybe in relation to later clauses.

The aim of the register is to help to ensure legitimate products are available for sale, and to let retailers know what they are. When a retailer—a chap running a corner shop—wants to buy some of these products to sell, and he has a licence, and he has checked people’s ages under the provisions of the earlier clauses, and he wants to sell the product, he wants reassurance that the product is genuine and not illicit. Checking this register for that product would be a step that a reasonable retailer can take to check the product is legit, or at least said to be legit.

Both industry and enforcement agencies have asked the Government to update the current notification systems. Although that was not part of the consultation process, I understand—and the Minister can perhaps clarify this—that subsequent consultation will be required to better inform the new registration system and its implementation.

The Government would like to ensure that non-nicotine vapes and other nicotine products being sold in the UK market are subject to the current notification requirements of nicotine vapes. That is in line with the consultation undertaken by the previous Government in 2023, when the majority of responses were in favour of regulating all non-nicotine vapes and other nicotine products under a similar regulatory framework as nicotine vapes. Again, I ask the Minister to consider whether the MHRA is the best organisation to be providing that service if it is not doing what most of the public may consider it is doing?

At the moment, if enforcement agencies find that the product is notified as not being compliant with regulations, they are unable to update the notification accordingly. The new powers will ensure that the register of products can be updated, and therefore that items can be removed if they are not meeting requirements. To ensure that we can effectively monitor the products and support enforcement, it is necessary for the Government to have the power to introduce the registration regime. I am not against the principle of that, but I think it needs to be well thought through. Perhaps it will be when it comes to the regulations in the statutory instrument—when we no doubt meet again. Adding regulations in general is not necessarily a welcome thing, but in that case it may be useful.

There will be some costs to industry, due to measures including product registration requirements, particularly on non-nicotine vapes and other nicotine products. That may put off producers with lower standards and may improve the general safety standard of the industry, but it is also possible that those with lower standards will not bother, so the Minister needs to explain what the plan is for that—and also the plans for factories.

The registration requirements will also mean that consumers can access more information on non-nicotine vapes and other nicotine products. I ask the Minister: will consumers have access to the information on what all the ingredients are? Will there be thought given to people with allergies who wish to use those products? There may be a cost to companies that have to request information from their suppliers and gather existing data on non-nicotine vapes and other nicotine products. Companies will also have to spend resources on completing the required paperwork.

Based on the impact assessment for the Tobacco and Related Products Regulations, I understand that the Government expect those tasks to take between 10 and 15 hours per notification, plus or minus any translations or translation costs that may be required. Given that any companies notifying the UK will be selling or operating in the UK, translation costs should be negligible. Therefore, it will be 10 to 15 hours work, plus currently a small fee of £150 to notify of a nicotine-containing vape product. There is also a fee for tobacco and herbal products set at £200, a fee for any modifications at £100, and a further annual reporting fee of £100.

A new fee will be imposed to register products, which will likely be in line with the current fees for tobacco, herbal and nicotine-vape products. Non-nicotine vape products and other nicotine products that were not subject to notification of fees will be charged a fee to register, with the amount to be determined through further consultation. That is another case where essentially what is happening is that the Government are taking a lot of power to do things, but not being terribly explicit about what they intend to do with them. While the Minister said that he is going to go like the clappers, we still have no clear indication of how fast those clappers are clapping away.

For potential new information requirements, there may be additional costs with acquiring that information. Some manufacturers may already collect new information, in which case there will be no additional costs other than staff time spent collating and submitting. Those costs may be more burdensome for smaller companies. The changes will be achieved through secondary legislation, which will be subject to consultation to determine what information should be notified, how the registration will operate, the process for any non-publication of notification and the level of fees associated with costs administering the system.

The impact assessment says that the Bill will also give the industry enough time for businesses to make any changes before the future regulations come into force. Again, the Government are saying that they are going to give enough time, and they are going to go like the clappers. But how fast are the clappers going and how much time is enough for industry? I still do not think we have any idea.

I have a couple of questions. In subsection (3)(a), where the regulations make a provision about who is to keep the register, will the Government clarify what that Government body or third-party private entity will be? Will it be the MHRA, or will it be something else?

Subsection (3)(b) gives the Secretary of State power to regulate eligibility for registration. There is room for debate about what constitutes eligibility and whether small businesses or new entrants will face excessive regulatory hurdles. The power may also raise concerns about what happens if a product or business fails to meet the requirements. Will they be shut out of the market? Will they be forced to make changes? How will that work?

Paragraphs (c) and (d) of subsection (4) require producers to provide information about potential risks to human health and substances released by products, but the wording is relatively broad and could raise questions about how tobacco and nicotine product manufacturers will assess and report risks. What level of scientific evidence will be required? How will they balance transparency with proprietary information or concerns about trade secrets? What will happen if the product risk assessment is disputed, and how will disputes be resolved?

We may have a situation where the vape manufacturer says that their product and the flavourings are safe but the evidence from medical professionals suggests otherwise. Will they provide the information themselves or will they fund other people to do it? Will that be done under a general pool, or will it be specific to that product at that time? How much influence will the industry have over the results? If we ask a specific question, we will get closer to the answer we want.

In the case of vaping products specifically, the health risks are not yet fully known. It is fair to say that there is some debate on the matter, even among respected authorities. The American Lung Association claims that vaping is linked to a condition called popcorn lung, and the Harvard Medical School lists popcorn lung under the risks of vaping. However, the NHS and Cancer Research assert that vaping does not cause popcorn lung, so there is a dispute. Clearly, more research is needed, but in the meantime how will the regulations in the clause address an issue like this?

Subsection (5) introduces the idea of fees for registration, including provisions that allow the fees collected to reflect the cost of regulation. It raises issues about how the fees may affect small and independent producers in a market that is taxed. Do we have any indication about what the fees may be? Could the cost of registration become prohibitive for small companies and push them out of the market? Will there be mechanisms to ensure that the fees are not too burdensome for newer and small businesses, or is the intention to limit the number of products on the market by making the fees higher so that we get a smaller number of products and are therefore more able to regulate and assess what is in each of them?

[Andrew Gwynne]

I welcome this debate because it raises some important questions. First, we have had a long discussion about the MHRA, and under the existing legislation it is the appropriate body. I want to make one thing very clear by emphasising the point that the shadow Minister rightly made and that the MHRA also made in giving evidence to us on the first day of the Committee: no medically approved vape is available. Vapes being registered through the MHRA does not make them medically approved for health purposes. It is really important to keep emphasising that no vape currently available in shops in any part of the United Kingdom is medically approved for health purposes by the MHRA.

I take very seriously the point the shadow Minister makes about whether the MHRA is the appropriate body going forward for this aspect of the registration scheme. We are considering how a more rigorous registration scheme can best be delivered given the nature of these products, which I again emphasise are not healthcare products. We are scoping a potential new home for the registration scheme. Officials at DHSC and the Office for Product Safety and Standards have already met to discuss learning and best practice from other product registration schemes. I hope that gives some hope to Members. While the MHRA is currently the appropriate body, at some stage we might well decide that it is not necessarily the best place for this new registration scheme to sit.

[Dr Johnson]

I thank the Minister for that. I am grateful that he is looking for a new home for the regulation that more accurately reflects what is being done.

--- Later in debate ---

[Andrew Gwynne]

Yes, that is absolutely the case.

On the shadow Minister’s question about the ingredients in the vape—or any other product, for that matter—if those turn out to be different from those in the register, I reiterate that the product could be eligible for complete removal from the register until the information is updated. That is precisely the measure that enforcement agencies have asked for to give them the greater clout that they need when it comes to non-compliance: once those products are removed from the register, they would not be permitted for sale—end of.

[Dr Johnson]

Let us look back to the issues of the Elfbar items that had, as I understand it, a higher number of milligrams per millilitre—certainly a higher nicotine content—than they were supposed to. If there is no penalty other than being removed from the register until the information is updated, could not someone less reputable say, “Well, I’ll put on what I want to put on; if I get caught, I will at that point say what is really in it and go straight back on the market”? Is a period of not being able to sell the product envisaged? Is a stiff fine envisaged? What is the penalty envisaged or will the register simply have to be updated?

[Andrew Gwynne]

As the clause stands, the product would be removed from the register and could not be sold. Alongside that, we aim to establish a testing regime to check regularly that products on the shelves are what they say they are. That will help to support overall enforcement and ensure that all registered products are safe for consumers. As with other matters, all will be set out in regulations, subject to consultation. Ultimately, all this is down to the regulation-making powers. All of part 5 basically sets out the framework for what can be done in future, subject to regulations.

On the point about ingredients—the shadow Minister made this point twice, in particular about people who may be allergic to certain aspects of the ingredients in a product—under the TRPR, products already need to list the ingredients. We have sought to introduce powers, which we covered during our debates on the earlier clauses, whereby Ministers would be able to request even more information on packets or products, should that be deemed necessary. We have the measures already in place through the TRPR on publishing the ingredients. Were Ministers in future to decide that a particular compound was highly allergic to certain people so there needed to be further warnings on packets, they would have the power to make the necessary alteration through the usual processes of consultation and secondary legislation.

[Dr Johnson]

Will the Minister clarify whether the regulations require someone to print the ingredients in full on the vape packet, on the vape itself, on a website or on all three?

[Andrew Gwynne]

I will get back to the shadow Minister on that because I suspect that the House is about to divide, and I need a bit of inspiration from the box on the exact answer. I would not want to mislead the Committee inadvertently.

Clause 103 covers offences to provide false or misleading information. It will allow for the punishment of imprisonment or a fine, or both. I hope that covers the concern.

Question put and agreed to.

Clause 95 accordingly ordered to stand part of the Bill.

Tobacco and Vapes Bill (Ninth sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Tuesday 21st January 2025 Public Bill Committees

[Dr Johnson]

Will the Minister give way?

[Andrew Gwynne]

Perhaps the hon. Lady will let me finish. The measures are standard practice for any Bill, but Members have put some questions to me, so I will reassure them about some of the issues they have raised. But before doing so, I will give way to the shadow Minister, who has had plenty of time to talk about this matter.

[Dr Johnson]

I thank the Minister for giving way. I want to echo the point made by my hon. Friend the Member for Farnham and Bordon that the purpose of line-by-line scrutiny is to do just that: to go through the Bill line by line. The Minister’s job might be to get things on the statute book for his Prime Minister and Cabinet and for the Government in which he serves, but surely he wishes to ensure that the Bill he is leading on is in the best possible condition. That is the purpose of the line-by-line scrutiny that we are in Committee to do.

[Andrew Gwynne]

I absolutely do with that. The point I am making is that we have just over another week to deal with these matters. If we get to the end of next week not having considered important chunks of the Bill because we have wasted time on silly little matters that appertain not only to the whole of this legislation, but to other legislation as well, and on fairly standard clauses relating to how legislation deals with the Crown, that will be on His Majesty’s loyal Opposition.

I will make progress and answer the points that were made. Why are clauses 47 and 137 necessary parts of the Bill? The presumption is that legislation does not apply to the Crown unless expressly stated as doing so. The clauses clarify that provisions in parts 1 and 6 of the Bill, and in the regulations made under them, bind the Crown. They ensure that all bodies and persons acting as public servants of the Crown are held to the same standards as businesses and private citizens in England and Wales. They ensure consistent application of the Bill across the public and private sectors.

Does the Bill bind Parliament? Yes, it does. Parliament was consulted and was content with clause 159, in particular, being included. We have already had the debate about snuff, and it will be up to the House authorities to determine the rules of the House. There is absolutely nothing to prevent there being a box at the entrance to the Chamber with the latest chief Doorkeeper’s name engraved on it—that tradition can remain for evermore—just as we have a Smoking Room, which we can no longer smoke in but which is still called the Smoking Room. That is tradition. I really do not know why Members are overthinking these matters.

Members asked why there are differences between Crown applications in the devolved Administrations. As we have already discussed, the Bill brings together legislation from across the four nations. I believe it is a triumph, because it shows the close working relationship between the Labour Government and the devolved Administrations, irrespective of the parties in power in Cardiff Bay, Holyrood and Belfast. Because health is a devolved matter, and because the Bill builds on legislation dating back nearly 100 years in some cases, there are some differences in the provisions for each nation.

Members asked why only some parts of the Bill apply to the Crown. The fact is that clauses 47 and 134 explicitly provide that parts 1 and 6, and any regulations made under them, apply to the Crown. Other measures in the Bill also apply to the Crown without the Bill’s explicitly stating so because those provisions amend existing legislation, and the Crown application reflects whether the underlying legislation applies to the Crown.

There is an established precedent that smoke-free places legislation does not apply to the Crown in England and Wales, and that it is the responsibility of the Department responsible for running the relevant part of the Crown Estate to determine what is appropriate. That is precisely what the House of Commons did when it determined that the smoking ban would apply to the royal Palace of Westminster. The same is true of all the measures in the Bill.

Members asked which parts of the Bill will apply to the Crown. Part 1 and regulations made under it apply to the Crown by virtue of clause 47.

The hon. Member for Sleaford and North Hykeham asked about Northern Ireland. Part 3 amends existing legislation in Northern Ireland, and it does not apply to the Crown. That is an existing precedent, which the Department of Health in Northern Ireland wishes to retain. Part 2 amends the existing legislation in Scotland and part 1 amends the legislation in England and Wales. That is why there is a different approach to different parts of the United Kingdom in respect of the Crown.

Members asked why we need clause 66, the technical clause relating to the Scottish Government. It is because it corrects an omission in the Tobacco and Primary Medical Services (Scotland) Act 2010, and it is being made at the request of the Scottish Government. It is a convention that in an Act of the Scottish Parliament those responsible for the enforcement of the legislation are explicitly identified as being able to make an application to the Court of Session for the purposes outlined in the clause. Scottish Ministers may take over enforcement under the 2010 Act, so it is appropriate that they are listed alongside local authorities, which is what clause 66 achieves. The clause inserts a provision into the 2010 Act, which is Scottish law. There are no impacts on the law in England, Wales or Northern Ireland. The clause is narrow and relates only to provisions in part 1 of the 2010 Act.

Members asked about overburdening the court. We are working the Ministry of Justice to ensure that the Bill does not introduce a significant burden. This is about regulatory change—and, look, most citizens are law abiding and will follow the law.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[Andrew Gwynne]

I thank the shadow Minister for the points she has raised. Definitions are needed to ensure that the legislation can be interpreted with an appropriate understanding of the technical terms, and we have opted to take a co-ordinated approach to definitions across the four nations, which will hopefully ensure clarity for the public, retailers and enforcers.

As we know, nicotine is a highly addictive drug, particularly for adolescents whose brains are still developing. As mentioned in the Bill, a nicotine product means any device, part of a device, or substance containing nicotine that is intended to deliver nicotine to the human body. There are currently no age of sale or advertising restrictions for products such as nicotine pouches—and, unlike vapes, there are no set nicotine limits. Nicotine strengths can vary from 2 mg per pouch to, in some cases, 150 mg or more. Like vapes, they can come in a variety of flavours and colourful packaging designed to appeal to children. The use of nicotine products such as nicotine pouches is increasing, particularly among young men. As we are committed to doing everything we can to protect children from becoming addicted to nicotine, it is only right to take action to control these products.

[Dr Johnson]

On the point about nicotine pouches, it is of concern that they may be the next way in which this industry seeks to make our young people addicted to nicotine. We have seen in places such as Sweden a plethora of these products, which are now expanding across the UK as well. I know the Minister will be looking at some proposals to restrict the amount of nicotine in the pouches. When he does so, will he consider not just how much nicotine is in them compared with a cigarette, but how much is absorbed into the body? The amount in a cigarette that is absorbed as a proportion is much lower than that of a nicotine pouch.

[Andrew Gwynne]

Those are important considerations for when we are developing the regulations, and I take precisely the same view as the shadow Minister. These things have to be part of that overall analysis and equation when we come to look carefully at the regulations.

The shadow Minister asked a number of questions. First, she asked whether a provisional driving licence would be applicable, and the simple answer is that it would. She also asked whether there is a loophole here with medicinal products, and whether children could be restricted from purchasing vaping substances for a future vape that may have medicinal approvals. Of course, it is important to point out to the Committee that to date no such vape exists. As per all licensed medicines, if one existed, it would be regulated by medicine regulations, which are subject to higher standards set by the MHRA.

The health advice is that nicotine replacement treatment, for example, is most effective when provided alongside expert advice. That is really important, and that is why we are putting money into smoking cessation services and why measures in the Bill will permit the distribution of free vapes by the NHS and public health authorities; we think that is entirely appropriate.

There is no age of sale restriction for nicotine replacement therapies. In extreme circumstances, for example, were there a MHRA-approved vaping device that met the criteria of a medical device, I suppose the vaping liquid could be prescribed to a child if that were appropriate. That is all hypothetical because there is not such a device approved by the MHRA; therefore, there is not the loophole the hon. Member for Sleaford and North Hykeham thinks there might be, although she is right to raise it.

[Dr Johnson]

To clarify the point about there being no device available, that had been my understanding as well, but Dr Laura Squire from the MHRA said in evidence to the Committee that in 2015 a vape had been approved for medical use, but had never been marketed. Has the licence for that product lapsed in some way so that it is no longer available?

[Andrew Gwynne]

I do not know, but I will ensure the Committee is informed by officials. My point is that it is not marketed. Therefore, there is no medical device on the UK market, and all that is currently hypothetical. We have to legislate for the future, which is why I said that nicotine replacement therapy is the most appropriate form of treatment for children. Were there a device at some stage in the future that was available for the NHS to use in a medical context—as opposed to swap to stop—then it would be appropriate for a doctor to be able to prescribe that should they wish to. However, that would be within a highly regulated medical setting, as opposed to just getting liquids from a vape shop.

[Dr Johnson]

Clauses 48 and 49 exempt the medicinal product and medical devices. I understand why the Minister has done that, but how is he going to ensure that the industry does not find ways of making the nicotine replacement products that are currently legal and used only for medical purposes lemonade, gummy bear or unicorn milk-flavoured, and therefore attractive to children? The Committee has heard repeatedly about the way the industry behaves.

[Andrew Gwynne]

We absolutely have thought about that, which is why the measures in the Bill and the powers it gives to Ministers across the jurisdictions of the United Kingdom enable regulations to be made to ensure that we always keep up with where the industry is going and—importantly—where the evidence is going. This is not just about where the industry might go; it may be that at some stage in the future there is new medical research showing that even the levels we are talking about lowering to have safety issues, and we will need to react to that.

That is why I will defend the way the Bill has been drafted, ensuring that Ministers will be able, at any stage in the future, to return to Parliament or the devolved legislatures to seek changes to secondary legislation to ensure that the measures are always relevant to the circumstances of the day.

Question put and agreed to.

Clause 48 accordingly ordered to stand part of the Bill.

Clause 49 ordered to stand part of the Bill.

--- Later in debate ---

[Andrew Gwynne]

In answer to the shadow Minister, clause 52 will repeal the offence for someone under the age of 18 in Scotland of buying or attempting to buy a tobacco product or cigarette papers. It means that it will no longer be an offence for someone under the age of 18 to buy or attempt to buy those products in Scotland. That is because Scotland is the only part of the United Kingdom in which it is an offence for those under 18 to purchase tobacco products. The repeal will align the legal approach across the whole United Kingdom. It is being done after consultation and with the full consent of the Scottish Government. With the change to the age of sale, it was no longer deemed necessary to retain this provision, as the age-of-sale restrictions apply to the sale and not the purchase of tobacco products.

Clause 53 will repeal the power for constables in Scotland to confiscate tobacco products or cigarette papers from someone in a public place whom they suspect to be under 18. Both provisions were originally made in the Tobacco and Primary Medical Services (Scotland) Act 2010. Repealing them will ensure that legislation in Scotland is in line with legislation in England, Wales and Northern Ireland. With the change to the age of sale, it was no longer considered necessary to retain the provision, as age-of-sale restrictions apply to the sale and not the purchase of tobacco products. As we have already debated, that will ensure that we do not criminalise children.

Question put and agreed to.

Clause 52 accordingly ordered to stand part of the Bill.

Clause 53 ordered to stand part of the Bill.

Clause 54

Extension of tobacco legislation to herbal smoking products

Question proposed, That the clause stand part of the Bill.

[Dr Johnson]

Clause 54 will extend tobacco legislation to cover herbal smoking products, which are products made from plant material and intended for smoking that do not contain tobacco. It will amend section 4 of the Tobacco and Primary Medical Services (Scotland) Act, which governs the sale of tobacco products to individuals under 18, by inserting “herbal smoking product” after “tobacco product” in subsection (1). This will mean that the sale of herbal smoking products is subject to the same restrictions as tobacco products and is prohibited to persons under 18.

The clause will also amend section 4C of the 2010 Act, which deals with the sale of tobacco-related products by persons under 18, by adding “herbal smoking product” so that individuals under 18 are also prohibited from selling herbal smoking products. This is distinct from the ability to buy them, for which there will be a rolling age; it applies to the selling of these products.

The clause will also modify section 6 of the Act, which addresses the purchase of tobacco products on behalf of individuals under 18, otherwise known as proxy purchasing. It will amend subsection (1) by inserting “herbal smoking product” after “tobacco product”, making it illegal for anyone to purchase herbal smoking products on behalf of individuals under 18.

Finally, the clause will insert into section 35 a definition for herbal smoking products. This was covered in clause 48 and clause 1; clause 54 will add it to Scottish legislation. It specifies that a herbal smoking product is one that is made entirely or partially of vegetable matter and that is intended to be smoked, but that does not contain tobacco. Given our previous debate, these seem reasonable changes to make.

[Andrew Gwynne]

I will not detain the Committee on this question. As the shadow Minister says, these are reasonable changes to make and are in line with the clauses that we have just discussed.

Question put and agreed to.

Clause 54 accordingly ordered to stand part of the Bill.

Clauses 55 to 57 ordered to stand part of the Bill.

Clause 58

Possession of snus etc with intent to supply

Amendment proposed: 70, in clause 58, page 29, line 19, at end insert

“, save if it is a first offence.”—(Dr Johnson.)

See explanatory statement to Amendment 72.

Question put, That the amendment be made.

--- Later in debate ---

[Dr Johnson]

Clause 65 introduces schedule 9, which will amend the Tobacco and Primary Medical Services (Scotland) Act 2010 to broaden the scope of the retailer register and make related provisions to include herbal smoking products, vaping products and nicotine products, alongside tobacco. The amendments that it makes aim to regulate businesses that sell those products in a similar way to tobacco products.

Essentially, in schedule 9, the key changes are as follows. There will be an expansion of the register: section 10 of the 2010 Act will be amended to require the Scottish Ministers to maintain a register of businesses that are selling tobacco, herbal smoking products, vaping products and nicotine products. It will ensure that all those categories are subject to the same regulatory framework as respects the register.

There is clarification within the schedule of a “registrable business”, which is now defined to include any businesses dealing with tobacco, herbal smoking, vaping or nicotine products. The term is used throughout the Act, ensuring that all relevant businesses are captured under the regulations.

The amendments that schedule 9 will make to section 11 of the 2010 Act require applicants to specify which type of registrable business they intend to operate at each premises —essentially, which products they wish to sell. Can the Minister confirm that that means that some businesses could register to sell some products but not others under the Act? Perhaps they could sell tobacco products but not nicotine products, or vice versa. The registration process will be updated to reflect those additions.

Section 12 of the 2010 Act, which deals with certifications and notifications, will be amended to require certificates of registration to specify the type of product that a business sells. Additionally, under section 13, businesses must notify the Scottish Ministers of any changes, such as if they no longer desire to sell a specific type of registrable product. The Act’s provisions concerning banning orders, offences and public inspection of the register will be updated to reflect the inclusion of herbal smoking products, vaping products and nicotine products alongside tobacco products.

In addition, schedule 9 will add new definitions, including of “herbal smoking product business” and “nicotine product business”, ensuring clarity in the application of the law.

[Andrew Gwynne]

I welcome the shadow Minister’s comments. Of course, health is a devolved matter. Scotland has a long-established and functioning register of tobacco and nicotine vape product retailers. The Bill will expand Scotland’s registration scheme to include retailers selling herbal smoking products and nicotine products. The Scottish Government’s view is that introducing a licensing scheme at this time would put undue pressure on local authorities and the retail sector in Scotland. In line with the Scottish Government’s tobacco and vaping framework, the technical infrastructure of the register is being improved, which has been welcomed by stakeholders. Each of the nations of the United Kingdom is taking forward an approach that best suits its population.

--- Later in debate ---

[Dr Johnson]

Clause 84 is a short clause that extends the retail register provisions in Northern Ireland. It states:

“Schedule 10 amends the Tobacco Retailers Act (Northern Ireland) 2014 (c. 4 (N.I.)) to extend certain provisions about the registration of tobacco retailers so that they apply in relation to retailers of vaping products and nicotine products.”

Schedule 10 ensures that retailers selling tobacco products, herbal smoking products and cigarette papers are covered by the scheme.

[Andrew Gwynne]

As the shadow Minister says, the clause extends the existing registration scheme by expanding it to businesses that sell relevant products. The register will be expanded while the new licensing regulations are introduced, ensuring a stronger and consistent enforcement regime at all times.

Question put and agreed to.

Clause 84 accordingly ordered to stand part of the Bill.

Schedule 10 agreed to.

Clause 85 ordered to stand part of the Bill.

Schedules 11 to 13 agreed to.

Clauses 86 and 87 ordered to stand part of the Bill.

Schedule 14 and 15 agreed to.

Clause 88 ordered to stand part of the Bill.

Clause 89

Power of officer of Revenue and Customs to seize and detain snus etc

Question proposed, That the clause stand part of the Bill.

[Dr Johnson]

Clause 89 is such an important clause in that it forms a whole part of the Bill, part 4, by itself; whereas other parts contain multiple clauses, part 4 only contains clause 89. The clause deals with the power of a Revenue and Customs official to seize and detain snus, which the Bill defines as an oral tobacco product that

“is not intended to be inhaled or chewed”.

Hon. Members will remember that snus is a tobacco product that the Bill treats differently from all other tobacco products; there is a much heftier penalty for sale and a complete ban on manufacture. In line with the fact that it is dealt with differently from other tobacco products and that it will be illegal to manufacture and import, there needs to be provision for customs officials to deal with the snus if they find it.

Subsection (1) allows a Revenue and Customs officer to

“seize any relevant oral tobacco products that have been imported and detain them for no more than 48 hours.”

I presume that 48 hours is standard; the Minister may be able to expand on that. Any products seized and detained under this clause

“must be dealt with during their period of detention in such manner as the Commissioners for His Majesty’s Revenue and Customs may direct…For the purposes of calculating the 48-hour period mentioned…any period falling on a non-working day is to be disregarded.”

The Minister will be able to confirm, but I presume that is essentially saying that, if a product were seized on a Friday at 4.50 pm, they would get all of Saturday and Sunday and until late on the Tuesday to deal with the snus and would be able to seize it for that period.

The clause says that non-working days are Saturdays, Sundays and bank holidays; that is fairly straightforward. A relevant offence is an offence under clause 9 of the Bill in England and Wales, section 9C of the Tobacco and Primary Medical Services (Scotland) Act 2010, which is inserted by the Bill, and article 4G of the Health and Personal Social Services (Northern Ireland) Order 1978, which is also inserted by the Bill.

[Dr Johnson]

My hon. Friend is right to probe the Minister on those questions. It is important to understand why things are chosen. The Minister has sometimes referred to things being chosen because that is the way they were before, but the writing of new primary legislation offers a not-frequent opportunity to change things that may not be working very well. When items are seized at the moment, is the Minister’s advice from his civil servants that 48 hours is an adequate period of time in which to deal with all the paperwork that presumably needs to be done? Is it too long, and could it be shorter if it needed to be?

The commissioners for His Majesty’s Revenue and Customs are responsible for dealing with the relevant oral tobacco product during the period of detention, but that will not prevent the importation of snus for personal use. Can the Minister explain why that is the case?

[Andrew Gwynne]

It is not illegal to consume snus in the UK—I got told off for pronouncing that in Mancunian as “snuss” earlier, but each to their own—or to possess it for personal use. Clause 89 is that is intended to form part of a robust legislative framework in relation to oral tobacco products, and specifically helps to enforce other provisions of the Bill that prohibit possession with intent to supply in the course of business. It is common practice for customs officials to seize suspected illicit goods at the border. That will now also be applicable to snus products imported into the UK. The 48-hour period is standard practice, but after 48 hours the enforcement agency is able to decide on what action it wishes to take. I hope that answers the points raised by the shadow Minister and the hon. Member for Farnham and Bordon.

[Dr Johnson]

I want to understand how a customs official would make such a decision. The Minister has been clear that it is not illegal to possess snus—I hope I pronounced that properly—for personal use. However, it is an offence to manufacture it under clause 7, to sell it or offer it for sale under clause 8 or to possess it with intent to supply under clause 9. How would the Minister quantify an amount for personal use? Under ordinary circumstances, one could say—

Tobacco and Vapes Bill (Seventh sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Thursday 16th January 2025 Public Bill Committees

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

Clause 15 makes it an offence to give away or discount any vape product. That is important because discounts encourage us to buy more things. That is what they are there for; it is what promotions are for. They encourage us to buy things that we did not want or need. We do not want people to consume excessive quantities of vapes that they do not want to have, but that does happen. A cursory glance on the internet shows that numerous websites are advertising vape discount codes and vouchers offering 10% or 15% discounts on vapes, as well as giftcards that are readily available for online purchase. The clause therefore replaces section 9 of the Tobacco Advertising and Promotion Act 2002 and extends its scope, as there are currently no restrictions on businesses freely distributing nicotine and non-nicotine vaping products, cigarette papers and herbal smoking products.

In 2023 the former Prime Minister, my right hon. Friend the Member for Richmond and Northallerton (Rishi Sunak), created an illicit vapes enforcement squad, backed by £3 million. It was designed to close the legal loophole that allowed the vaping industry to provide free samples of vapes to be distributed regardless of consumer age. That was patently unacceptable, and I welcome the action that the previous Government took on the issue. I point out that giving away vapes was pretty common. In fact, my own parliamentary staffer went to a promotional event on vaping held in Parliament itself, in this very House, and was given free samples of Vuse vapes. I have been made aware by staffers that similar events take place outside Parliament, so I think that this is a useful clause and I will support it.

[The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)]

It is a pleasure to serve under your chairmanship, Sir Roger. May I start by not only thanking the shadow Minister for her support, but congratulating my hon. Friend the Member for Dartford on his birthday? [Hon. Members: “Hear, hear!”] It is a real pleasure that we are able to provide him with a full day’s entertainment—better than Netflix.

--- Later in debate ---

[Andrew Gwynne]

I thank Members for their contributions.

Clauses 16 to 22, clause 85, and schedules 1 to 4 and 11 to 13 establish powers for Ministers in England, Wales and Northern Ireland to introduce a licensing scheme for the retail sale of tobacco, vaping products, nicotine products, cigarette papers and herbal smoking products. There is currently no requirement for a business to obtain a licence to sell these products, which is a major gap in enforcement. This gap is hard to defend since the sale of products such as alcohol does require a licence, while tobacco—the single biggest preventable cause of death, disability and ill health—does not. Vaping and nicotine products also carry, as we have heard, a significant risk of harm and addiction.

Introducing a licensing scheme will strengthen enforcement of the law, acting as a deterrent to rogue retailers who breach sales regulations, supporting legitimate businesses and ultimately supporting public health outcomes. Retail licensing is a highly popular intervention, as the shadow Minister helpfully pointed out, because the polling shows that 81% of retailers and 83% of the public are supportive of tobacco retail licensing, and it is one of the most popular tobacco interventions surveyed.

Clause 16 establishes that an individual in England is required to hold a personal licence in order to sell tobacco, vaping products or nicotine products, expose those products for sale, and possess products for sale. The clause also establishes that a person must have a premises licence for any premises in England used for the storage, exposure or supply of a relevant product to a retail customer.

The clause provides for a discretionary power for the Secretary of State to make exceptions by regulations to the requirements for a personal or premises licence. This will enable regulations to appropriately account for all possible types of retail. The Secretary of State in England must, by regulations, make provisions for how licences are to be granted and must conduct a consultation before regulations are introduced. The scheme will be commenced by regulations.

I hope that in part answers the question posed by the hon. Member for Farnham and Bordon, because we want to ensure that the licensing regime is fit for purpose not just for bricks and mortar businesses, but for online business.

[Dr Caroline Johnson]

Will the Minister address under which part of the legislation regulations will be made in Scotland?

[Andrew Gwynne]

I will come to Scotland in due course.

Schedule 1 establishes the framework for the regulations. It establishes that the licensing authority will be the local authority, and defines the relevant types of local authority that regulations could establish as the licensing authority. In answer to the shadow Minister’s question, given that there is likely to be local government reorganisation in the future, it will be, and will remain, the responsibility of the outgoing local authority that is the licensing authority to continue the licensing function up to the date that the new local authority comes in, out of a shadow form.

The usual practice in local government reorganisation is that a shadow local authority is in place for a year in advance. It sorts out restructuring and necessary background work, with local members who were elected to the shadow authority becoming the members of the new local authority on the commencement date. That was true of the Local Government Acts in 1972 and 1996, and it has been true of local government reorganisations since. I have no reason to believe it will not be true of the next set of local government reorganisations. For a period of time, the outgoing local authority will be the licensing authority because it is the local authority until the date that it moves to new arrangements. From day one of the new arrangements, the new authority will be the licensing authority.

[Dr Johnson]

Some areas have a unitary authority, some have a unitary authority and a mayor, and some have restricted county councils. As local reorganisation occurs, how will the tier of local authority that has the competency and duties under this legislation be defined?

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[Andrew Gwynne]

No. The local authority, not the parish council, would be and will remain the licensing authority, as is the case at the present time. Notwithstanding that there may be a quasi-additional tier in the form of a mayor and a combined authority, where areas move from a two-tier to a unitary authority, it will be the local authority that is the licensing authority. That is what happens in my constituency in Greater Manchester, where we have effectively had unitary authorities since the metropolitan county council was abolished in 1986. Tameside metropolitan borough council and Manchester city council are both unitary authorities. They are both the licensing authorities for their respective parts of my constituency, even though we have a Greater Manchester combined authority and a Great Manchester metro mayor. I hope that clarifies the issue.

Schedule 1 also establishes that regulations may make provisions regarding the granting, duration, renewal and revocation of licences, and enables the licensing authority to charge a fee for the granting of a licence. In response to the point raised by the hon. Member for Windsor, the fee structure may be set at a level that takes into account administration and enforcement costs. The local authority will be able to use the fee to help cover the cost of granting licences and enforcing the scheme. That is the closest I can get: we intend it to be cost-neutral for the purpose of operating the scheme.

Schedule 1 establishes that regulations can place conditions on the licence. Retailers that breach those conditions will be subject to civil financial penalties. Regulations may make provision for licensing authorities to publish information about licences, such as the addresses of licensed retailers, and, to maintain fairness, regulations must include an appeals route, so that retailers can, for example, appeal decisions on the granting of a licence. Finally, regulations may require that a licensing authority must consider guidance published by the Secretary of State to support the smooth implementation of the scheme.

Clause 19 and schedule 3 establish the same power to introduce a licensing scheme in Wales, with the same framework for the regulations. The schedule establishes the licensing authority in Wales to be the council of the county or county borough. Clause 85 achieves the same in Northern Ireland by inserting a new clause into the Tobacco Retailers Act (Northern Ireland) 2014, while schedule 11 establishes the same framework. In Northern Ireland, a council will be the licensing authority.

Clause 17 creates offences in relation to the licensing scheme in England. It makes it an offence to sell, expose for sale, or possess for the purpose of sale any relevant products without, or not in accordance with, a personal licence. The clause also makes it an offence to use a premises in England for the storage of relevant product for the purpose of retail sale, the exposure for sale, or the supply of any relevant product to a retail customer without, or not in accordance with, a premises licence, and knowingly to provide materially false or misleading information in a licence application.

Anyone found to be committing a licensing offence may be issued with an unlimited fine on conviction. As an alternative to prosecution, trading standards may issue a £2,500 fixed penalty notice, which is an on-the-spot fine. Regulations can confer on courts a discretionary power to suspend or revoke a licence on conviction. The court may order relevant product to be forfeited and destroyed, to prevent a business from continuing to sell or unlawfully selling product.

Clause 20 establishes the same licensing offences in Wales, and clause 85 establishes the same licensing offences in Northern Ireland. In Northern Ireland, district councils will enforce the licensing scheme. People convicted of a licensing offence face a fine of up to £5,000. As an alternative to prosecution, councils in Northern Ireland can issue a fixed penalty notice, the value for which will be determined in regulations.

Clause 18 creates civil financial penalties for breaches of licence conditions in England, to ensure that licensed retailers continue to follow the rules. Breaching conditions is a civil matter, not dealt with by the courts. The value of the civil financial penalty cannot exceed £2,500. The clause also provides a limited and specific power to update that value to account for inflation, to ensure that the value remains relevant. A civil penalty cannot be issued if the breach of the licence condition already constitutes a licensing offence. That is to ensure that someone cannot be subject to double punishment for the same licence breach.

[Dr Johnson]

The power to increase the fine is in line with inflation, but if evidence over time showed the Minister that the fine was not adequate to deter the offence from taking place, the Government might wish to raise it by more than inflation, to provide a greater deterrent. Would it be wise to make the power more flexible?

[Andrew Gwynne]

As I have said during previous outings in the course of this Committee, the Bill merely rolls over the existing fines. We would need to do a much more complex piece of work to uprate the fines beyond the current values, plus inflation. That is not what the Bill seeks to do; we do not want to overcomplicate it.

Tobacco and Vapes Bill (Eighth sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Thursday 16th January 2025 Public Bill Committees

[Andrew Gwynne]

In that case, clauses 28 to 30 relate to restricted sale orders, which are another tool in the arsenal of trading standards that can be used against those who repeatedly commit an offence. Like the clauses related to restricted premises orders, they are based on and replace existing legislation.

Clause 28 provides that a persistent offender in England and Wales can be issued with a restricted sale order. A persistent offender is someone who has committed an under-age sale of cigarette papers, tobacco or herbal smoking, vaping or nicotine products or has committed the offence of selling them from a vending machine at least twice in the previous two years. A restricted sale order is similar to a restricted premises order, but it puts a ban on an individual, rather than a premises, selling relevant products. It also prohibits the individual from having management functions related to the sale of relevant products and from keeping machines on any premises that sell relevant products. This is one of several measures in the Bill that will ensure that our enforcement approach to tackling under-age sales is both effective and proportionate. The clause is important for the overall functioning of the Bill, as it provides local authority trading standards with a further tool of enforcement. Restricted sale orders also act as a deterrent to persistent offenders, as they apply to a specific person regardless of where they are employed or whether they change employment.

Clause 29 provides those in receipt of a restricted sale order in England and Wales with the ability to appeal to a Crown court. The clause is important to the functioning of the enforcement regime in the Bill, as it enables individuals to appeal against a restricted sale order, such as where they feel that they have a case that the order has been inappropriately or unfairly issued. That maintains the fairness of the enforcement regime in the Bill.

Clause 30 makes it an offence to breach a restricted sale order issued in England and Wales. The offence is committed when the individual has done something, such as sell a product, that they have been prohibited from doing under the restricted sale order. It provides a defence where a person took all reasonable steps to avoid committing the offence. The clause is based on and replaces existing legislation. As with restricted premises orders, making it an offence to breach restricted sale orders gives local authority trading standards the ability to escalate action to tackle persistent offenders. The severe penalty of an unlimited fine can act as a deterrent.

I commend clauses 28, 29 and 30 to the Committee.

[Dr Johnson]

As the Minister has already described these clauses, I will not repeat that information, but I encourage him to answer my questions on the previous clauses, as they apply similarly to this group. The others were related to restricted premises; these clauses relate to restricted sales applying to people, but the questions are the same.

If one appeals to the Crown court, how much will it cost? The Minister did not answer the question about the phraseology of “on the premises” and how that would relate to the collection of items bought online. In the debate on the previous clauses—the same question applies to these ones—he did not answer why the offences in clauses 4 to 6 and 13 to 15 are not considered relevant. Will he also clarify that a different relevant offence can occur on each of the three occasions within the two years?

With regard to restricted sale orders, paragraphs (c) and (d) of clause 28(2) relate to machines used for the purpose of selling cigarettes and other banned products. It is illegal under previous clauses to sell items from a machine, so why would one need a restricted sale order to ban something that is already illegal?

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[Andrew Gwynne]

I will follow your guidance, Mr Dowd, because we will debate some of these issues further.

First, I apologise to the shadow Minister on the subject of the questions that she asked, particularly about the fines. The fine for a breach is level 5. That is the maximum and an unlimited fine. When it comes to the breach of a restricted premises order and the other offences we have been discussing, these are all serious offences that take place after someone has committed multiple previous offences and when several enforcement steps have already been taken along the way. It is therefore really important that trading standards has the option—and it is that, an option—to escalate enforcement measures to issue a potentially very high fine. The fine needs to reflect the severity of the offence and the fact that the offender is persistently breaching the regulations.

That follows on to the matter of record keeping raised by my hon. Friend the Member for Cardiff West. We will continue to work with trading standards during the long lead-in time that we anticipate we will have once this Bill hopefully gets Royal Assent. I am sure that trading standards already has good record-keeping that will help it to ascertain persistent offenders for rogue sales but, if it does not, we will work with it to make sure that it does and that it can properly enforce the measures in the Bill.

On the point about the current use of restricted sale orders, the data from the tobacco control survey shows that between April 2013 and March 2020, one council applied to the courts for a restricted sale order that was not approved. There have been no tobacco control survey reports since 2020, so more recent data is not available, but this information is gathered by the Chartered Trading Standards Institute, so that answers that point.

I take the point made by the hon. Member for South Northamptonshire about restricted sale orders and vending machine offences and we are seeking to remove vending machines for tobacco and vape sales. Restricted sale orders specifically prevent the sale of tobacco, vape and nicotine products, and, when offences relating to the sale of these products have been persistently committed by an individual, we think that they are a proportionate enforcement tool that is specific to the nature of the offence committed. I take the hon. Lady’s point that we are seeking to remove vending machines, but we want to make sure that the clauses are as watertight as possible so any sales from vending machines that might happen would still be covered by the scope of the measures for enforcement.

[Dr Johnson]

I thank the Minister for answering some of my questions. Another question related to clause 29 and appeal to the Crown court. How much does he anticipate that the average cost to interested parties will be? If he does not know, perhaps he could write to us.

On clause 28, the relevant offences do not include offences in other clauses in part 1 of the Bill, including clauses 4, 5, 6, 13, 14 and 15. They are not included as relevant offences in clause 28, or indeed clause 23. Given that the Minister wants a robust and watertight approach, why is that not the case? The other question related to online collection.

[Andrew Gwynne]

The hon. Lady has asked a number of technical questions. We will get back to her and the Committee about the interrelationships between different clauses.

On the question that she asks about applications to the Crown court and the fines system in the Crown court, it is of course the Crown court that deals with appeals against penalties issued in respect of criminal offences dealt with in the magistrates courts. These are matters for the courts.

I know she asked about costs, and we believe that it would not be proportionate to prevent a business that has breached tobacco and vape sale restrictions from being able to conduct other types of businesses. For serious cases, where criminal behaviour occurs on a premises, local authorities can apply for a closure order under section 80 of the 2014 Act. Closure orders fully close a business for a maximum of three months and can be extended for a further three months on application to a court. I am not sure that covers her point, but we will get back to the hon. Lady on that.

[Dr Johnson]

I had another question on restricted sale orders. Why has the Minister chosen to include particular clauses and not others? I believe he will write to the Committee on that question.

[Andrew Gwynne]

Yes.

[Dr Johnson]

I asked about online sale and collection versus sale on premises. Finally, if an individual person is a repeat offender under clause 28 because they have sold tobacco three times, that would be fairly clear. If they have sold tobacco on one occasion, vapes on another and cigarette papers on another, does that still count as three relevant offences?

[Andrew Gwynne]

It is obvious that three separate offences have occurred, so if the hon. Lady is asking whether they count as three offences under the Bill, of course they would. They are each their own separate offence under the Bill. That is absolutely the case. We cannot be any clearer that these are three separate offences; they are in different parts of the Bill, but none the less they are offences under the Bill. I hope that clarifies that point.

In terms of online sales, what we want to ensure is that the measures in the Bill are proportionate. These clearly relate to premises rather than a virtual space. I will certainly write to the Committee to make sure that online is covered in the provisions. Throughout the measures we have discussed to date, we have discussed trying to bring the same regulation to bricks and mortars and to online, so that there is no loophole for the industry to move away from a physical space to online, to try to get around restrictions. How that relates to a particular restricted sale order is technical in detail, so I will write to the Committee at the earliest opportunity to clarify the point.

Question put and agreed to.

Clause 28 accordingly ordered to stand part of the Bill.

Clauses 29 to 31ordered to stand part of the Bill.

Clause 32

Enforcement by local weights and measures authorities

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Andrew Gwynne]

Look, the clause merely reaffirms the current case, which is that local trading standards and weights and measures authorities must consider certain things. The hon. Gentleman is right that on the enforcement regime for tobacco and vaping products, the Bill extends the consideration that local members should give. It is very clear, with the set of measures we are dealing with in this Bill, what those considerations should be and what local councillors and the executive or the mayor should consider on behalf of the local authority. Every local authority trading standards has a programme of enforcement that is approved by that local authority; this Bill will request of them that that is extended, within the scope of the measures in the Bill—hopefully to be an Act—to include what we expect for the enforcement of tobacco and vape regulations.

The Bill will also ensure that they continue to review the action they take on a regular basis. It is really important to ensure that the enforcement regime in any particular local authority area is as robust as it can be and that, where there are deficiencies, the local authority and the members constituting it have the opportunity to put things right. Clause 34 makes the same provision for programmes of enforcement action in Wales as is made for England under clause 33, and clause 81 makes similar provision for district councils in Northern Ireland. I therefore commend these clauses to the Committee.

[Dr Johnson]

I thank the Minister for outlining what these clauses do. I will not repeat his summary, but I will ask him one question: could he confirm what provisions are made for Scotland, please?

[Andrew Gwynne]

Scottish Ministers have advised that they do not wish us to legislate on this. It is my understanding that that is why these measures relate solely to England, Wales and Northern Ireland.

Question put and agreed to.

Clause 32 accordingly ordered to stand part of the Bill.

Clauses 33 and 34 ordered to stand part of the Bill.

Clause 35

Power of ministers to take over enforcement functions

Question proposed, That the clause stand part of the Bill.

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[Andrew Gwynne]

The shadow Minister makes an important case for these measures covering England and Wales. There are no known cases of Ministers needing to take over the enforcement of tobacco and vape regulations in England and Wales. Trading standards operates in all local areas and undertakes enforcement responsibilities, and it will continue to do so. We acknowledge as a Government that it is highly unlikely that these powers will ever need to be used, but it is important to have them to ensure that there is consistency in enforcement, if there is ever an occasion where a local authority is unable to conduct enforcement activity. We believe these powers act as a useful safeguard for very extreme circumstances.

If this power were exercised—as the shadow Minister has rightly put to us, although we do not expect it ever to have to be—how would it work in practice? It is a fair point. Ministers would decide how enforcement functions would be taken over, as well as the suitable organisations or individuals who would be involved in undertaking the enforcement action for a particular case, or cases of a particular description. That is woolly for the simple reason that we do not know what those circumstances would be. Were there circumstances severe enough to warrant Ministers utilising this power, we would want to ensure—

[Dr Johnson]

Ministers intervening in a particular case is obviously quite a sensitive issue, particularly where that is the prosecution of a single individual or the duty to enforce regarding a single shop. I can understand that there may be a conflict of interest, and the Secretary of State may be asked to choose a different authority to arbitrate to avoid that conflict, but how will the Minister ensure that these measures are not used for political purposes?

[Andrew Gwynne]

All I can say to the shadow Minister is that we do not intend to use these powers. They would hopefully never see the light of day. However, we have to legislate for—we are keen to legislate for—those exceptional circumstances that will probably never happen. Where there is a real failure on the part of a local trading standards to deliver its core functions, as set out in the Bill, Ministers must reserve the right to intervene.

[Dr Johnson]

With respect, if the clause said that the Secretary of State reserves the right to take over proceedings or the duty to enforce for more multiple cases in the same area, or take over the whole job of the local authority, that would perhaps make some sense, if the local authority was underperforming in its duties. However, these clauses state that it is for a specific case, not the wider failure to deliver.

--- Later in debate ---

[Andrew Gwynne]

I get that—it is difficult without having a specific example, because there has not ever been one, but we have to assume that at some stage in the future there may be a case, however unlikely that is. We have to ensure that the Secretary of State has the absolute confidence that the trading standards functions of a particular area are able to meet the ambitions of the Bill. If, for whatever highly unlikely reason, there is a conflict of interest or those functions have not been delivered in an appropriate way, Ministers need to have that opportunity to intervene. That is what this power, as unlikely as it may be, seeks to do; it is a backstop in the extreme, unlikely circumstance that local trading standards is not operating in accordance with the measures of the Bill.

[Dr Johnson]

Has the Minister discussed it with his Scottish and Northern Irish counterparts, and can he say whether they have a similar provision? If they do not have it, why do they feel that they do not need it?

[Andrew Gwynne]

Scotland does not have the powers in the Bill, and nor does Northern Ireland. We have discussed all of this in terms of where we are legislating for different parts of the United Kingdom. I would like to reassure the shadow Minister, though, that Scotland does have a similar, separate power from this. It is not true that Scotland does not have this power; it does have it, but does not want it to be part of the framework in the Bill.

This is a measure that we believe is a safeguard. It is unlikely that we will ever seek to use it, but we have to have those safeguards, because were there to be a local authority that is not able to perform the requests that the Bill sets out, and were the Secretary of State or Ministers at some stage in the future of the view that the trading standards functions were not meeting the requirements of the Bill, there has to be some measure to allow Ministers to step in and try to fix that situation so that the measures in the Bill, and the robust enforcement that we expect from those, are applied consistently across the whole country.

[Dr Johnson]

The Minister says that it is similar in Scotland—I would be grateful if he could confirm whether that is related to individual cases or to a wider takeover of a failing Department. The Minister has talked a lot about the proportionality of the offences, fines, and punishments that can be chosen by trading standards, and he says that he trusts trading standards to ensure that that is proportional to the offence on each occasion. The concern is that the clauses would allow the Secretary of State to interfere with that by taking over the proceedings or the decision to enforce in a particular case, which would mean, for example, that if a Secretary of State was concerned that his best friend was running a shop and was about to get into trouble, he could intervene on the basis of this legislation and prevent that person from having proceedings. Likewise, if an Opposition politician was in the same situation, he could intervene to make proceedings much harder and harsher than they would normally have been.

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[Dr Johnson]

I cannot give way, because I am intervening on the Minister. Does the Minister understand that concern?

[Andrew Gwynne]

I understand what the hon. Lady is trying to get at, but I started by saying, in answering her, that there have been no known cases of Ministers needing to take over the enforcement of tobacco and vapes regulations in England and Wales. These are an important safeguard in a probably never event—[Interruption.] She asks why we are doing it: we are doing it precisely so there is a safeguard and, in an extremely rare occasion that we might need to intervene, we are able to. It is not a power that we are seeking to use, nor do we want to use it, but it is an important safeguard. With that, I commend the clauses to the Committee.

Question put, That the clause stand part of the Bill.

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[Andrew Gwynne]

I am grateful to the shadow Minister for bringing this discussion before the Committee today. Amendment 54 would provide that someone who commits the offence of selling tobacco, herbal smoking products or cigarette papers to someone under age in England and Wales, or the offence of purchasing these products on behalf of someone under age—proxy purchasing—cannot receive a fixed penalty notice when it is their first offence and they admit to committing the offence.

Amendment 55 would achieve a similar effect in Scotland. This amendment would ensure that someone who commits an offence of selling tobacco, herbal smoking products or cigarette papers to someone under age in Scotland, or commits a proxy purchasing offence or the offence of failing to operate an age verification policy, cannot receive a fixed penalty notice when it is their first offence and they admit to committing the offence.

The shadow Minister’s intention may be to establish greater leniency for first-time offenders by removing fixed penalty notices as an enforcement option. Or it may be that she just wishes for first-time offenders to potentially face criminal prosecution and higher fines. Nevertheless, we do not want to weaken the existing penalty regime or reduce enforcement options available to trading standards by creating exceptions for first-time offenders or anyone else who has committed these offences. We also do not want to risk causing confusion for trading standards officers, when it comes to utilising these fines, by creating different rules for first-time offenders.

The purpose of the fixed penalty notices is to enable trading standards to take enforcement actions against rogue offenders more quickly and easily. These on-the-spot fines avoid the need to take offenders through a time-consuming magistrates court process, and reduce the pressure on courts. When enforcing tobacco and vape legislation, trading standards takes a proportionate approach, choosing the appropriate action to take to achieve compliance. That typically starts, as we have discussed, with the issuing of warning letters, which is often effective in achieving compliance without the need to escalate to harsher penalties, such as prosecution and associated criminal fines, which are subsequently issued by a court on conviction. We do not want to remove the ability of trading standards to issue fixed penalty notices, including for first-time offenders, where that is viewed as a proportionate penalty for the particular case before them. It is for those reasons that, once more, I ask the shadow Minister to withdraw the amendments.

I now move on to clause 37, which amendment 54 seeks to amend. The clause introduces new fixed penalty notices in England and Wales to enable local authority trading standards to take quicker action by issuing on-the-spot fines to retailers in breach of regulations, instead of seeking a court prosecution. The fine will be £200—double the amount proposed in the same Bill when introduced by the previous Government. We will go further by enabling the use of the fixed penalty notice for a wider range of offences.

Trading standards officers will be able to issue a £200 fixed penalty notice for under-age sales, proxy purchases and free distribution of tobacco, vaping and nicotine product offences, as well as breaches of tobacco age of sale notice restrictions and breaches of display of products and price regulations made under this Bill. The value of the fixed penalty notice is reduced by 50% to £100 if paid within 14 days by the individual in question. This amount is proportionate and brings the value of the fixed penalty in England and Wales into closer alignment with the current similar values in Scotland and Northern Ireland and the £200 fixed monetary penalties for breaches of the single-use vapes ban. It was also the most popular value given by respondents to the Government’s public consultation.

A higher fixed penalty amount, set at level 4 on the standard scale—currently £2,500—will be available for licensing offences under clauses 17 and 20, in England and Wales, once respective licensing schemes are established through regulations. This higher value reflects the seriousness of these offences and will help the taking of action against rogue retailers.

Fixed penalty notices offer an individual the opportunity to avoid prosecution for an offence if they make a payment within a specified period. Existing fixed penalty notices already in place for proxy purchases of tobacco and vape products will be replaced by this new regime. A strong and proportionate approach to enforcement is vital to support the implementation of new tobacco and vape measures and put us on track to a smoke-free United Kingdom. Fixed penalty notices will complement our existing sanctions and strengthen the toolkit available to trading standards officers by allowing them to take swifter action to fine rogue retailers that breach certain regulations, including age of sale regulations. I therefore commend clause 37 to the Committee.

[Dr Johnson]

The Minister has reassured me that the trading standards officer fining someone breaching the regulations and the provisions of the Bill that are relevant has the capacity to issue warning letters to someone who they believe has committed such an offence inadvertently—someone who would otherwise wish to adhere to the law, but has made a simple mistake—and there is a range of other options, such as an FPN or prosecution itself, for the more reckless or persistent offender, so I will not press my amendments to a vote.

On clause 37 itself, can the Minister answer this question. People can repeatedly be issued with FPNs; if someone were issued with an FPN rather than being prosecuted, would that be recorded as a “relevant offence” under clause 23 or 28—on restricted premises orders and restricted sale orders—or could someone be recurrently getting an FPN and not be treated as a recurrent offender?

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[Andrew Gwynne]

My apologies to the shadow Minister. The simple answer is no; paying a fixed penalty notice is an alternative to criminal prosecution. A person cannot be convicted of the offence if they pay the fixed penalty notice within the specified time.

[Dr Johnson]

I thank the Minister for that information. Does he therefore envisage situations in which an individual receives an FPN recurrently but is not treated as a recurrent offender?

[Andrew Gwynne]

That would be a matter for trading standards to judge, but one would expect that if somebody is a recurrent offender in that regard, trading standards may want to use the vast array of enforcement powers, including, ultimately, being taken through the court process, should that be appropriate. But that is entirely a matter for trading standards.

[Dr Johnson]

I think that could lead to a situation where the first offence is committed and trading standards gives the individual a warning letter because they believe the individual did not intend to commit it, the second offence is committed and an FPN is issued, the individual commits a third offence and gets another FPN, and so on. By the time we get to the fourth offence, the trading standards officers may get fed up with that individual and want to treat them as a recurrent offender but be unable to do so because they have technically never committed a relevant offence. Trading standards would then have to prosecute them for the next three offences over two years before they could treat them as a recurrent offender, which would delay the prosecution under the restricted premises or restricted persons order of an individual deliberately and recklessly selling age-restricted products to under-age people. Can the Minister consider whether someone receiving recurrent FPNs would be considered for the restricted sale order, perhaps at a higher threshold than prosecution?

[Andrew Gwynne]

The shadow Minister makes a valid point. I remind her, though, that there is an array of tools for trading standards to use. A fixed penalty notice is one; we have discussed and debated other measures to date. There is an entire toolbox of enforcement measures. I am not quite the Stalinist some might think; I trust trading standards to take the appropriate action given the circumstances. The Bill, hopefully soon to be an Act, will provide trading standards with an array of different measures, so that if they decide that someone is a persistent offender, they can go down a variety of different routes.

[Dr Johnson]

On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 ordered to stand part of the Bill.

Clause 38

Fixed penalties: use of proceeds

--- Later in debate ---

[Andrew Gwynne]

The hon. Lady makes a reasonable point. Wales is the only devolved Government to have a provision on handing over products to people who are underage. That is why the clause is framed in the way that it is, given the fine balance of reaching consensus across the devolved Administrations and England. Wales is the only devolved Government to have this provision.

[Dr Johnson]

I may have misheard the Minister, but I am not sure he explain why he does not think it is necessary in England.

[Andrew Gwynne]

We do not think that this power is necessary, nor did the Northern Ireland Executive or Scotland. Wales wishes to retain a power that it already has, and I think that is fair enough.

Question put and agreed to.

Clause 40 accordingly ordered to stand part of the Bill.

Schedule 5 agreed to.

Clause 41 ordered to stand part of the Bill.

Schedules 6 and 7 agreed to.

Clause 42

Application of programmes of enforcement to old age of sale offences

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Andrew Gwynne]

Clause 45 enables the Secretary of State by regulation to extend the provisions of part 1 to cover devices or parts of devices that allow tobacco products to be consumed. Clause 67 amends the Tobacco and Primary Medical Services (Scotland) Act 2010 to give the equivalent powers to Scottish Ministers. Clause 86 amends the Health and Personal Social Services (Northern Ireland) Order 1978 to give the equivalent power to Northern Ireland.

These provisions mean that any newly emerging device or current device, such as heated tobacco devices, could be covered in future. This future-proofs the Bill, will allow us to stay on top of tobacco control and will protect the public from the harms of tobacco. Before making any regulations under the clause, the relevant Ministers or Department will have a duty to consult. For amendments to part 1 of the Bill, the Secretary of State must obtain the consent of Welsh Ministers if those regulations would be within the legislative competence of the Act of the Senedd. I therefore commend these clauses to the Committee.

[Dr Johnson]

I believe this is the clause the Minister previously mentioned in relation to bongs. It is his desire to ensure that items used for illegal drugs, which are currently legal only on the basis that they are used for tobacco, will not need to be used once tobacco is not as available. I have a question relating to the age of sale, because tobacco has a rolling age of sale. Is he suggesting that, to put these provisions in place and make these items illegal—such as the bongs that he has referred to so forcefully in the past—the smoke free generation will need to reach the point where there are no members of the smoking generation left?

--- Later in debate ---

[Andrew Gwynne]

I am not sure whether anybody is listening in to the proceedings of this Committee—I am sure lots of people are; the hon. Member for Windsor said thousands—but I certainly think that somebody connected with the tobacco and vape shop on Strutton Ground is listening, because the said offending bong, which has been there for the six months that I have been Minister, seems to have disappeared from the shop window. That shows the power of the parliamentary processes—it is not just sad geeks who are listening in to the proceedings of this Bill—[Interruption.] Indeed, it might have been sold—I did start to wonder whether I had inadvertently been advertising said bong.

The supply of controlled drugs and any articles for administering and preparing controlled drugs is regulated under the Misuse of Drugs Act 1971. However, as I have flagged, some items that might be captured by this legislation are also being displayed and sold. That is how they are getting around the Act—under the premise that they are used for smoking tobacco—and that includes things such as pipes and bongs.

[Dr Johnson]

My understanding was that the Minister did not wish to restrict the use of tobacco products and other products covered by this Bill by those who are over the age of sale, whether that be the smoke-free generation date or the age of 18. Does he accept that if he brings in regulations under clause 45, it will potentially affect those who are currently buying tobacco legally? How will he ensure a balance between protecting our population from drugs, particularly illegal drugs, and maintaining the availability of tobacco for those to whom the Government have decided it should be available?

[Andrew Gwynne]

I quite accept the shadow Minister’s point. We are not making the purchase or consumption of tobacco or tobacco products illegal. What we are doing is ensuring that the next generation can never legally be sold tobacco or tobacco products. I do not wish to stray over old arguments, but as I said when the Committee debated clause 1 at length, Parliament is effectively saying to the tobacco industry, “This is it. This is as good as your market share is ever likely to be. We’re going to stop that conveyor belt, so new people don’t come along to replace those who are dropping off the other end as a consequence of your product. We will move hell for leather to shrink what little market base you now have still further through things like the stop smoking programme,” which we discussed under the previous clause.

I hope that the hon. Lady accepts that although we will absolutely allow people who currently smoke to continue smoking or using tobacco products until the day they die if they so wish—we will do all we can to wean them off that addiction, but if they want to, they will be able to—we will be preventing the next generation from ever getting hooked. That is the context for all these clauses.

The power that we are discussing in relation to clause 45 will only mean that the other parts of the Bill can be extended to include these products. That is an important factor. We are not banning these products; we are just covering them in measures such as the display powers that we are discussing. That is important. It will mean that if a bong is put in a shop window like the one on Strutton Ground, action can be taken not on the basis that it is drugs paraphernalia—heaven forbid, because that would be a breach under the Misuse of Drugs Act 1971—but because the said bong can be used to smoke tobacco. It will give us the powers, should we so wish, to include a variety of other products in the scope of the Bill so that they cannot be displayed. If they are not displayed, the chances are that the said shops will not be selling them.

--- Later in debate ---

[Dr Johnson]

One point to add is that individuals with certain disabilities may not have a driving licence, because their disability makes them ineligible to drive. The options available to them are quite substantially restricted, because most of the options on the list are forms of driving licence. Has the Minister assessed whether those with disabilities are more or less likely to have the documents listed, and is he happy that those with disabilities who wish to buy age-restricted products can do so?

[Andrew Gwynne]

We have already discussed at length the Government’s intentions to have a robust but workable system that does not overburden retailers, but enables them to have the confidence that the people to whom they are selling their products meet the required age of sale. I have already discussed and set out the reasons for the list of ID cards.

Of course, most of the forms of ID are things that most people have, or they are able to get a PASS ID card. Those are commonplace for people who are currently under the age of sale for a variety of products, and that is one form of ID that they can purchase if they do not have any other forms of ID. There is also the defence for retailers that they took all reasonable steps, which might involve their looking at a form of ID other than those set out in the legislation, such as veteran cards, which we have already spoken about at length. That remains the case.

I want to give a bit of background on how the list came about. My understanding is that in the previous incarnation of the Bill there was not a list of forms of ID. That came in for criticism by the then Bill Committee, which thought that there ought to be a list. That is how we have ended up with the list that we have now.

[Dr Johnson]

Is the Minister suggesting that if a shop worker or retailer selling an age-restricted product to an individual saw a form of ID that is not listed in part 3 but which they were convinced was a real and genuine certification of age, they could use that instead?

[Andrew Gwynne]

That is the reasonable defence that we have already discussed under earlier provisions of the Bill.

[Dr Johnson]

So why is a list necessary? Why not just say “as long as they have taken reasonable steps to get the ID”?

[Andrew Gwynne]

If the hon. Lady lets me finish my contribution, she might get an answer that she likes. I have already had discussions with my officials about how we have less ambiguity in relation to the ID. The list was put in for the reasons that I stated. The previous iteration of the Bill did not have a list and was criticised by members of the then Bill Committee because it was too vague. We will perhaps come back at a later stage with an amended proposal.

I hope the hon. Lady recognises that her point has been made very well and that my officials and I are in full listening mode. We hope to reassure members of this Committee, probably on Report, that we can strengthen this element of the Bill—we do not want to weaken it—so that there is no ambiguity over ID. We will have a robust mechanism for retailers so that they have confidence in what is and is not an acceptable form of ID. We will get this right. I am determined that we will get these measures right and that they will be enforceable.

On the ability to add or remove from the list, should that be necessary, it will be future-proofed. However we define the requirements on identification, whether it is as it currently stands or as it changes, the way we do ID will change. In my relatively short lifetime—I am only 50—technology has moved on apace and forms of identification have changed. Who knows how things might change over the next 50 years? We have future-proofed much in the Bill against the tobacco and vaping industry being able to find another route through to sell its goods to the next generation. We are putting roadblocks in place for all those mechanisms. We also need to make sure that the enforcement mechanisms are fit for purpose for the future.

I hope I can reassure the hon. Member for Farnham and Bordon that the intention is not to make it easier to escape the ID requirements or make it harder for people to prove that they are of legal age. Perhaps, at some stage, certain ID mechanisms will become obsolete and we will need to remove them, but this is about adding new ID to the list so that as new forms of identification become available that we have not even thought of, the Bill will be future-proof. We are not restricting ID to passports and drivers’ licences that we might not even have in 50 years’ time. I hope the hon. Member accepts that explanation, and I hope that Members understand that we are in listening mode. We are looking at what constitutes applicable ID, so that clarity will be there for the retail industry on what applies and what does not.

Question put and agreed to.

Clause 46 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Taiwo Owatemi.)

Tobacco and Vapes Bill (Fifth sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Tuesday 14th January 2025 Public Bill Committees

[The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)]

Before we were rudely disturbed by the weekend—I hope that all Members had a good one—we were coming to the conclusion of the debate on this grouping. I thank all hon. Members for their valuable contributions to discussions last week; I will continue to respond to the outstanding points raised in the previous sitting.

On the Windsor framework, we are proud to say that the Bill is UK-wide and has been developed in partnership, in full, with the Scottish Government, Welsh Government and Northern Ireland Executive. This Government, and I hope this House, intend the smoke-free generation policy to apply to all four nations.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

I have a quick question for the Minister about some of his answers last week about the clause. He said that tobacco products would include bongs, and was quite passionate about that. But clause 48, which is meant to be read in relation to clause 1, defines “tobacco product” as something that contains tobacco. I have seen bongs made of glass, ceramics and various other things, but I have never seen one that contains tobacco. It is certainly easy to make one that does not contain tobacco. I am therefore interested in why the Minister believes that the Bill equates bongs and tobacco products.

[Andrew Gwynne]

I am grateful to the shadow Minister for that. We will come on to those issues in more detail when we eventually reach those clauses, which given the rate of progress so far may be in the early hours of tomorrow morning, if Members decide so. The only reason why such paraphernalia is on display and legally sold is to consume tobacco, but we will get more information on that for her when we get to clause 45, which covers that issue.

I was talking about the Windsor framework. We believe that this policy is in accordance with our international obligations. In terms of what products are in scope, the Bill captures all tobacco products, including shisha, cigars and heated tobacco. That is because all tobacco products are harmful. There is no safe level of tobacco consumption. For example, tobacco smoke from cigars leads to the same types of disease as the smoke from cigarettes. In England alone, around five times as many people smoke other tobacco products, such as cigars, as did a decade ago, and children are a part of that increase. Shisha, to which the hon. Member for Windsor referred, also causes the same diseases as cigarettes, including cancer, respiratory diseases and cardiovascular diseases. The volume of smoke produced in the average 45-minute shisha session is estimated to be the same as around 25 cigarettes’-worth of tar, 11 cigarettes’-worth of carbon monoxide and two cigarettes’-worth of nicotine.

Finally, there is clear evidence about the toxicity of heated tobacco. The aerosol generated by heated tobacco also contains carcinogens, and there will be some risk to the health of anyone using those products. The crucial point is that, unlike with vapes, there is no evidence that heated tobacco supports smoking cessation. We must ensure that the Bill is future-proofed to include new or novel products, such as heated tobacco, to protect the public from the harms of tobacco use.

Although cigarettes are the most used form of tobacco, we do not want to create loopholes in the Bill so that the tobacco industry can pivot and continue addicting people to tobacco. As I said previously, the issue is about saying, “The market share you’ve got now is it. We are stopping the conveyor belt.” As we know, if we block one road, the tobacco industry finds another route through. We are making sure that the Bill is as watertight and future-proof as possible so that the tobacco industry can no longer continue to trade with another product that harms and addicts future generations.

--- Later in debate ---

[Andrew Gwynne]

I stand by what I have already said. The intention is to work with the retail industry during the long lead-in time to get the mechanisms in place that allow them to adequately enforce the measures in the Bill. We do not want to get this wrong. I politely say to the hon. Lady, however, that in the first instance it is highly unlikely that a veteran born before 1 January 2009 will seek to purchase cigarettes or other tobacco products and be queried about their age. I will take on board what has been said and, if what I said earlier is incorrect, we can perhaps come back to the issue.

I want to come back to tobacco products because the point is crucial. We want to ensure that the tobacco industry has that conveyor belt cut-off. It is therefore rational for all the products that I have mentioned to be included in the smoke-free generation legislation. That will prevent anyone from taking up use of the products in the first place.

As I stated in my opening speech, I am grateful to the hon. Member for Windsor for bringing the discussion before the Committee, but while I appreciate his intention, it is not something the Government support. In relation to the amendments, I say to the Committee that the Government do not believe it is appropriate to establish a more lenient penalty regime for the offences, or to introduce a mandatory age-verification policy.

The clause seeks to change the age of sale for tobacco products, herbal smoking products and cigarette papers in England, Wales, Scotland and Northern Ireland so that no one born on or after 1 January 2009 will legally be sold those products. The Bill will be the biggest public health intervention in a generation, breaking the cycle of addiction and disadvantage, and putting us on track towards a smoke-free UK. For those reasons, I commend the clause to the Committee.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

[Dr Johnson]

On a point of order, Mr Dowd. May I ask a procedural question? I heard some Members shout, “Aye”, and some Members shout, “No”. In the previous session we recorded what Members said, but we have not done so this time. Can I inquire as to what the reason for that is? Last time there was a vote that was then recorded for Hansard, but that has not happened this time.

--- Later in debate ---

[Dr Johnson]

My apologies. I was explaining the principle behind Opposition amendments 58 and 59, which are in my name. I do not know whether the hon. Member for Eastleigh was present on Thursday afternoon. Clause 2 refers to a “person” but does not specify who that person is, and there is as yet no guidance. The Minister said that the person could be the shopkeeper, the shop worker, the chief executive officer or whoever trading standards decided was the right person.

The fines to deter or punish illegal behaviour would necessarily need to be significantly larger for a large corporation than for a young chap of 19 working a few hours in the corner shop on a Saturday afternoon, for whom some fines would be quite punitive. The amendments allow for first offences to be treated leniently, in comparison with repeat offences, and their aim is to encourage the Government to think more carefully about guidance. When the previous Bill was introduced last Easter by the Conservative Government, with very similar wording in many cases, that Government produced guidance on how those charges would be applied. I am trying to encourage the Government to do the same thing. That is the purpose of the amendments.

I will endeavour to speak a bit louder. I do not know whether the hearing loop is working—

[Andrew Gwynne]

It is not.

[Dr Johnson]

I apologise again for not speaking loudly enough.

[Andrew Gwynne]

I am grateful to the shadow Minister for bringing this discussion to the Committee. As we have already argued, the amendments would create a more lenient penalty regime for the offence of purchasing tobacco, herbal smoking products or cigarette papers on behalf of someone under age—commonly known as proxy purchasing. In England, Wales and Northern Ireland, the amendments would create an exception to the maximum penalty that a person could face for committing that offence, if it was the person’s first offence. The amendments would establish that someone who admits to committing an offence for the first time would be liable, on summary conviction,

“to a fine not exceeding level 3 on the standard scale”,

which is £1,000, or liable instead to a discretionary caution in England and Wales or to a conditional caution in Northern Ireland. That is one level lower than the fine for which someone who committed that offence would be liable under the current legislation in England and Wales—level 4, which is £2,500. It is two levels lower than in Northern Ireland, where the fine would be at level 5, which is £5,000.

The amendments would have a similar effect on first-time offences as amendments that we have already discussed. If the Committee is content, I will not repeat myself as the rationale for asking the shadow Minister to withdraw the amendment remains the same as that for amendments that we have already covered.

[Dr Johnson]

Amendments 75 and 76 have the same principle behind them, so I will not repeat myself. They relate to clause 69; as hon. Members will recall, clause 69 amends Northern Ireland legislation that is similar to the legislation in clause 2. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Andrew Gwynne]

The hon. Gentleman makes a reasonable point. The Bill ensures that no one over the age of 18 is legally able to purchase tobacco products on behalf of someone under the legal age of sale, and there is a differential over time there. The age of 18 was chosen as it avoids criminalising children. This measure applies to all adults, and it does not allow for any ambiguity in law in the future. For example, it captures a situation in which someone over the age of 18, but under the legal age of sale for tobacco, attempts to buy products for a child. This action would be restricted, and the liability would not only be on the person selling the tobacco product, but also on the adult attempting to buy that product for the child.

These clauses align proxy purchasing offences with the new age of sale restriction for England, Wales and Northern Ireland. They provide a defence if a person charged with this offence can prove they had no reason to suspect that the person was born on or after 1 January 2009 or they can prove that they had no reason to believe that the other person intended to use the cigarette papers for smoking, which is in line with existing defences. These clauses are essential to ensure that there are no loopholes in the age of sale legislation, and they build on what works in the current age of sale legislation. I therefore commend the clauses to the Committee.

[Dr Johnson]

Clause 2 makes it an offence for a person aged 18 or over to make a proxy purchase of tobacco products, herbal smoking products or cigarette papers for a person born on or after 1 January 2009. It essentially stops an older person going in and buying those products for a younger person, which we are aware has been happening for many years with both tobacco and alcohol. If found guilty, the person committing the offence faces a level 4 fine on the standard scale, which hon. Members will recall is £2,500.

The clause replaces the current offence under section 91 of the Children and Families Act of someone aged over 18 buying or attempting to buy tobacco products or cigarette papers on behalf of someone aged under 18 in England and Wales. In many ways, that seems a sensible consequence to clause 1. If we want it to be illegal for people born after a set date to have tobacco, it makes sense to ensure that people cannot buy it for them.

However, I have some questions, particularly in relation to cigarette papers. I did not particularly talk about cigarette papers in our discussion of clause 1 because they are more rightly talked about in relation to clause 2, which treats cigarette papers differently, in so far as it makes them illegal unless a person can prove that they are using them for something else. I looked into what that something else might be. I naively thought that cigarette papers were essentially just bits of paper of a particular thinness that could be rolled up and stuck together with a little gum arabic once somebody had rolled whatever they wanted to roll inside them; in fact, that turns out not to be the case because of the law.

The papers contain ethylene-vinyl acetate, which makes them more fire-resistant. The sad situation is that every year people smoke in bed or in their armchair, fall asleep and cause themselves burns, and sometimes even cause death or house fires. The ethylene-vinyl acetate—a sort of plastic—added to cigarette papers helps them to self-extinguish and reduces the risk of fires; we know that some particularly dreadful fires, such as the Kings Cross fire, are believed to have been caused by loose cigarettes.

The cigarette papers are essentially made from plant fibre, such as bamboo flax and rice, but they can be flavoured and coloured. In the evidence given to the Committee last Tuesday, we heard about the tobacco industry’s aim of ensuring that younger people are enticed by colours and flavours. A quick look at Amazon—other sellers are, of course, available—reveals that people can buy cigarette papers in a whole range of bright colours. People can also buy cigarette papers with pictures of cherries, apricots, bubbles and all sorts of things on them. I thought it was interesting that that has not been covered in relation to cigarette papers. Why give an exemption allowing them to continue to be sold when the reality is that they will continue to be used for rolling either illegal tobacco or other forms of illegal drug?

--- Later in debate ---

[Andrew Gwynne]

That is a good question. Of course, if it was to be used for the consumption of tobacco, it would come within the scope of the Bill. We have to be clear that many of these products have dual uses, as we have heard. I am as guilty as anybody of making pipe-cleaner characters for my children and grandchildren—grandchild, rather, because I have only one so far.

We want to make sure that those who want to continue smoking are able to do so, but that obvious restrictions and boundaries are put in place regarding the accessibility of these products, so that no child born after 1 January 2009 will ever legally be sold them.

[Dr Caroline Johnson]

I thank the Minister for engaging in this discussion, because although it is somewhat technical to discuss cigarette papers, it is important. The hon. Member for Worthing West made the key distinction, which is that it is about the ingredients that are in a product. It would be possible for the Minister to devise legislation that sought to ban cigarette papers, without preventing a market in a similar product that would be ineffective as a cigarette paper but useful for the average modeller.

[Andrew Gwynne]

Perhaps we will return to that on Report. I have every sympathy with what the shadow Minister says. We do not want to prevent the legitimate use—indeed, a whole variety of uses—of these products, which is why we have the exemption in the Bill. If we are able to do what she suggests under the powers in the Bill, that would be great; if we can do only some of what she asks for in respect of flavours, that would go part of the way, and we will need to look at how we can strengthen that. If the shadow Minister can be a little patient, I think we can come back to this on Report.

--- Later in debate ---

[Andrew Gwynne]

The clauses restate the ban on tobacco vending machines in England, Wales and Northern Ireland and extend it to include vending machines that sell cigarette papers. The prohibition came into force in 2011 in England and in 2012 in Wales and Northern Ireland. Under the amendments made by the Bill it will be an offence for a person with management or control of a premises to have a vending machine available for use from which tobacco products, herbal smoking products or cigarettes may be bought.

The prohibition was originally introduced because tobacco vending machines were largely unsupervised and allowed under-age access to tobacco. In 2010, 8% of 11 to 15-year-olds who regularly smoked said that vending machines were a usual source of cigarettes. The policy has successfully contributed to reducing smoking rates in young people and has been effective at enabling the age-of-sale restrictions to be implemented and enforced properly.

The existing legislation is consolidated in the Bill to replace the regulations that cover an automatic machine from which tobacco products, herbal smoking products or cigarette papers may be bought. With all the restrictions that apply to such products covered in one Act, those who are affected by and who apply the legislation will find it easier to access them. I commend the clauses to the Committee.

[Dr Johnson]

As the Minister says, clause 3 outlaws the use of vending machines that sell tobacco or tobacco products, as well as herbal smoking products and cigarette papers. I note that there are no amendments to clause 3, presumably because it is somewhat settled and established law.

In the same way as vapes and other nicotine products, which we will come to later, vending machines make it much easier for people under the age of 18—or, under clause 1, those born after 1 January 2009—to buy age-restricted products that they are not legally allowed to purchase. They are self-service machines, so it is difficult to prove age and easy to get around if it is machine led. Historically, such machines have often been unsupervised by staff in a shop, thereby providing easy opportunities for younger people to buy from them.

It was coalition Government legislation—the Protection from Tobacco (Sales from Vending Machines) (England) Regulations 2010—that banned the sale of tobacco products from vending machines from 1 October 2011. That statutory instrument was made under section 3A of the Children and Young Persons (Protection from Tobacco) Act 1991, which was inserted by section 22 of the Health Act 2009. That is a complex chain to follow, so having this clause where everything is in one place is much simpler. The clause also adds herbal smoking and cigarette paper vending machines to the legislation—on a personal level, I welcome that, for the reasons I have given already—and clarifies the penalty, which was more difficult to establish when looking at the previous trail of legislation.

However, the clause does change the terminology. Previously, it was illegal on the basis of sale “from an automatic machine”; the Bill talks about an “automatic machine from which” products “may be bought”. It seems that they are the same thing, but of course we heard repeatedly in evidence how the tobacco industry tries to get round these things.

I found a trail of people discussing online how to get round the vending machine legislation, which raised various questions. If I buy a product from a major retailer online, I can choose to get that delivered to my home, I can collect it from one of its stores, and I can also pick it up from our local Co-op, the local post office, or from a box with a keypad door, at the garage and in other locations. If one were to buy tobacco products, herbal smoking products, or cigarette papers using an online app, and collect them from a dispensing machine—an automatic machine that dispenses cigarettes—in a pub, would that be covered by this legislation, or is that a loophole that could be exploited? I would be interested in the Minister’s comments on that, because we have heard how inventive the industry is. Would it be possible for people to circumnavigate the Bill’s intent by creating a machine that does not sell the product but simply gives to a person the product they have already bought?

Clause 70 applies to Northern Ireland. It will insert into the Health and Personal Social Services (Northern Ireland) Order 1978 the new article 4B, which is essentially the same as clause 3, so the same questions and comments apply. The only difference between the two clauses that I can see is that in Northern Ireland we have a level 5 offence, and in England and Wales we have a level 4 offence.

I wondered briefly why there was no clause for Scotland, but section 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 makes it illegal to have an automatic machine for the sale of tobacco products, regardless of whether the machine also sells other products, with a level 4 fine, so Members can be reassured that that is covered. I do not think the Minister answered this point in relation to the previous clause: clearly he chooses the fine levels for England and Wales in the Bill; why has he chosen to have the same penalty as Scotland but a lower penalty than that in Northern Ireland?

--- Later in debate ---

[Dr Johnson]

I thank my hon. Friend for her contribution, and she is right to talk about the quantity. If the principle behind this clause is to ensure that the quantity of sale is such that it restricts younger people from purchasing these products with their pocket money, what consideration has the Minister given to the quantities of herbal cigarettes, or herbal smoking products, and cigarette papers, so that they would be purchased in quantities not easily accessible to young people?

On the comments made by my hon. Friend the Member for Windsor about the fine levels, the fines are level 3, which in this case is consistent across the four nations of the United Kingdom. Clause 51 amends the Tobacco and Primary Medical Services (Scotland) Act 2010 to add proposed new section 4E, which essentially has the same effect—it is different wording, but it has the same essential effect of banning the sale of loose cigarettes. Clause 71 adds proposed new section 4C, which is essentially the same as clause 4, to the Health and Personal Social Services (Northern Ireland) Order 1978 to have the same effect. Again, it has the same fine, so there is some consistency across the four nations of the country, but I would be grateful for the Minister’s comments on the points I have raised.

[Andrew Gwynne]

I thank the hon. Lady for raising these matters. Again, it is a case of perhaps overcomplicating what the clause does. As with clause 3, clause 4 merely restates that it is an offence for tobacco retailers to sell cigarettes that are not in the original packaging they were supplied in. We are not talking about proxy purchasing, or somebody breaking up a packet of cigarettes and selling them as an individual; we are talking here about retailers. This practice used to be quite common, but thankfully, because of the measures that are already in place, it is already an offence and we are reaffirming that offence in the Bill.

[Dr Johnson]

The Minister says that it has been illegal for some time and that is an offence to sell loose cigarettes, and of course it has been. However, we heard in evidence from the Royal College of Physicians last week that the sale of loose cigarettes to youngsters was still a problem—it is an entry way into cigarettes. Does the Minister have any comment on whether reaffirming the offence with this legislation will actually help to enforce it to any greater degree?

[Andrew Gwynne]

Yes, I believe it will. Of course, this measure is not being taken in isolation, and it is not just a stand-alone measure. This is part of a whole package of tobacco control measures that form this part of the Bill. Taken together, these things will ensure that we drive down even further smoking prevalence in young people. However, we do not want to undo the legislation as it stands; we need it to be part and parcel of the whole raft of measures we are bringing forward.

--- Later in debate ---

[Andrew Gwynne]

Clauses 5, 6 and 72 replace the requirement for age of sale notices in England, Wales and Northern Ireland to reflect the new age of sale for tobacco products. Clause 55 provides Scottish Ministers with the power to set requirements about warning statements, which are notices that reflect the new age of sale requirements there. Age of sale notices are required under current legislation and must state in a prominent position:

“It is illegal to sell tobacco products to anyone under the age of 18.”

The Bill will replace that requirement with a requirement for notices to reflect the new age of sale, stating:

“It is illegal to sell tobacco products to anyone born on or after 1 January 2009.”

The notices must comply with any requirements set out in regulations on the size or appearance of those notices. This updated wording on age of sale notices will support tobacco retailers in implementing the new age of sale restrictions by helping to clarify and underline them for customers and staff. I therefore commend these clauses to the Committee.

[Dr Johnson]

Clauses 5, 6, 55 and 72 make provision for age of sale notices. Clause 5(1) makes it clear on which premises the notices must be displayed. In some respects, that is obvious, but the fact that the Bill makes clear that the notices must be on the same premises where the tobacco is being sold is perhaps a sign that the Minister has the measure of the tobacco industry: if that was not clearly stipulated, there would be temptation to display the notices in head office or somewhere else where no one could see them. The fact that it is thought necessary to state what is blindingly obvious—that the notice must be displayed in the right place—is somewhat sad.

Subsection (3) deals with positioning. The statement that the notice must be prominent and readily visible at each point of sale is relevant to shops that have more than one till at the counter. One sometimes goes to the counter of a large supermarket, or similar, and sees a whole row of tills. It is therefore important that the signs are visible from all the tills, not just the one closest to the tobacco.

What the notice must say is provided for in subsection (2):

“It is illegal to sell tobacco products to anyone born on or after 1 January 2009”.

That is clear, simple and informative, which is good. However, it does not mention cigarette papers or herbal smoking products. Why has the Minister chosen not to include the other items included in the rolling age of sale and the Government’s smoke-free generation on the notice for clarity? That is important because we heard in evidence, and have all read in the news, of examples where people who work in our retail sector have been treated in an abusive—sometimes violent—fashion or people have been very rude to them.

If the purpose of the notice is to be clear on what the law is, providing clarity that it also includes herbal smoking products and cigarette papers would enable the public to be aware of the law and the retailer to point to the sign and say, “I can’t do this—look.” The message as currently drafted does not do that, and that could cause shopkeepers or shop assistants more difficulty. I notice that under subsection (4), any aspect of the notices, including the appearance and wording, can be amended, so that could be done at a later date if the Minister feels that the shopkeepers’ evidence is that herbal smoking products and cigarette papers are proving a challenge. Why has he chosen not to do that at the outset?

Subsection (7) talks about a defence of having taken reasonable steps. I have two questions on that. First, is “It fell down and I hadn’t noticed, your honour” an adequate defence? How does the Minister envisage the reasonable steps defence? What are the reasonable steps? If the Government choose under subsection (4) to change the appearance or wording—perhaps if they discover it is inadequate in some way—what steps will need to be taken to ensure that all retailers are aware of those changes, and within what timeframe will retailers be expected to react to those changes?

The impact assessment says that the cost of putting up a new sign is not prohibitively expensive for an individual business—it is about £4 per retailer—but it means that there is an overall cost to small and micro-retailers of around £124,000 in England, and £143,000 in the UK. That is a cost to business overall, even if a small one to individual businesses. The impact assessment also notes the cost of staff training and awareness. There are an estimated 42,582 convenience stores in England, each with a store manager who would have to disseminate that information to the estimated 299,957 members of staff. Of those stores, 71% would be considered small or microbusinesses.

The cost of amending those things means that the Opposition invite the Minister to get the notice right the first time so costs are not incurred twice. There is an estimated cost of around £2 million in total on training. Although the cost to any one small or microbusiness is likely to be small—around £70 on average—that cost combined with £4 for a sign, at a time when small businesses are being squeezed by other budgetary measures the Government have brought in, is another potential straw to break the camel’s back.

The fine is at a level 3, and the person who carries on a business involving the sale of tobacco products by retail is the person who is liable. But what does it mean to be

“a person who carries on a business involving the sale of tobacco products by retail”.

Is it the director of the business? Is it the store manager who is on duty that day? Is it the overall store manager, or is it the licence holder?

Tobacco and Vapes Bill (Sixth sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Tuesday 14th January 2025 Public Bill Committees

[The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)]

It is a pleasure to serve under your chairmanship, Sir Mark. In responding to points that have been made, I want first to reiterate that these two clauses do not relate to enforcement; they concern the nature of the signage that will be required to be displayed. We can come to those other matters later in the Bill’s proceedings. I remind Opposition Members of what has been said in previous debates: we will use the very long lead-in time to engage fully with the retail sector to ensure that we get the delivery in shops right and to ensure that the Bill’s provisions can be implemented without any hiccups.

I also reiterate that we abhor any violence and abuse towards retail staff—or anybody else—and it is the intention of this Labour Government to introduce a new offence in this respect. Given the comments that have rightly been made in the course of this and earlier debates, I hope that it will command full support from all parts of the House.

The hon. Member for Windsor asked what is meant by “negative resolution procedure”. It is the procedure for the statutory instrument that will be have to be made to introduce these regulations. The fact that it is “negative” means purely that it will not require a parliamentary debate. It will be done through the usual secondary legislation processes.

There were questions about the nature of the clauses relating to different parts of the United Kingdom, and why we are approaching this with slightly different methods. I must say politely—particularly to the shadow Minister—that we have to respect the devolution settlement. These matters are entirely within the legislative competence of the devolved Administrations. Some things remain reserved for the UK Government, but for a lot of the measures in the Bill, the legislative competence rests with the devolved Administrations and their Parliaments.

[Dr Johnson]

I have at no point suggested that I do not respect the devolution that is in place. I made two remarks that reference devolution. One was about the different penalties that apply for the same offence in different parts of the United Kingdom. While I recognise that Ministers in other parts of the country have the competence to change the penalties to make them different from those that apply in England, it is clearly the Minister here who decides what the draft legislation should say with regards to the penalty in England. My questions focused on why he has chosen to make it different in England from other parts of the United Kingdom. Clearly, if the Northern Irish had chosen a higher penalty, it is up to him if he wishes to join them, or to have a lower penalty.

The other issue I have raised regarding devolution was in relation to clause 5. The Bill as drafted says that tobacco cannot be sold to people born on or after 1 January 2009, and much effort has gone into ensuring that that is replicated in Scottish legislation all the way through, even though the Scottish Parliament could do that itself if it wanted to. It makes sense to do it in one go here because that is more efficient in terms of both time and financial expenditure for civil servants across the country. So my question was why the Minister has chosen not to include in the Bill the change to the notice in clause 5, saying that tobacco cannot be sold to people under 18. Why not change that now?

--- Later in debate ---

[Dr Johnson]

I am merely suggesting that changing the notice in clause 5 to

“born on or after 1 January 2009”

instead of “under 18” now would be more efficient, and help our Scottish colleagues, rather than implying they are not capable of doing so.

[Andrew Gwynne]

Sir Mark, the hon. Lady protests too much here, because while it is true that she was questioning why, for example, the English fines could not be the rate of the Northern Irish fines, she was also pretty much calling for us to legislate for Scotland and Wales to bring consistency across the whole United Kingdom. Likewise with clause 5, she asks why we in this place are not legislating for Scotland in respect of the notices that will be displayed in Scotland. It is not our job to legislate where the Scottish Government do not want us to do so.

[Dr Johnson]

Will the Minister give way?

[Andrew Gwynne]

No, I will answer the hon. Lady. My officials and I have been in contact throughout the production of this Bill with officials and Ministers in the devolved Administrations. I have had umpteen meetings personally with my counterparts in Scotland, Wales, and Northern Ireland, and there is an open offer. They are genuinely excited, Sir Mark, that we are able—as far as possible—to legislate with their consent to make smoke-free UK a reality, and we have sought to design this Bill in co-production with the devolved Administrations. None the less, there are some things that the devolved Administrations do not wish this Parliament to legislate on. For example, in respect of clause 5, on the notices, the Scottish Government have made it very clear that this is something they wish to do in their own way, in their own time, notwithstanding the fact that they have given us assurances that the measures will be in place to give enough time for retailers north of the border in Scotland to implement them. It is not for me to overrule the will of Scottish Ministers, who have the legislative competence to do this, if they do not wish this Parliament to do it on their behalf.

I hope that that answers future similar questions about the differences in different parts of the United Kingdom. We are legislating with the permission and consent of the three devolved Administration Governments, and we are not going to overstep. I have already said to my ministerial colleagues in other parts of the United Kingdom that if, during the course of the Bill through this House and the other place, they think, “That is not quite right and we need it to be amended,” or, “You know, it does make sense for Westminster to do it all in one go and do it for us,” we will respect that.

I have given Ministers my promise that if, as an afterthought, they want us to do some of this for them on their behalf during the Bill’s progress through its stages in both Houses, we will facilitate that. However, I am not going to overstep the powers given to me by the Scottish, Welsh and Northern Irish Ministers to legislate on their behalf and to ensure that we have a United Kingdom-wide Bill that meets the separate and different needs, ambitions and expectations of our devolved settlement.

--- Later in debate ---

[Dr Johnson]

I am grateful to the Minister for making clear that the reason that the text contained within the age of sale notice is not being amended at this stage is because Scottish Ministers have told him they would prefer to amend it themselves at a later date.

[Andrew Gwynne]

I am grateful for that, and if any offence was caused by my earlier comments, I apologise to the hon. Lady. We need to set out clearly that we are doing something quite ingenious, and that is only because of the goodwill and the desire of Ministers from different political backgrounds in Scotland, Wales and Northern Ireland to get this legislation through the United Kingdom Parliament with the ability for them to then differ on consultations and other matters once the legislation is on the statute book. That would have been unheard of in years gone by, when relationships were not necessarily as good as they currently are between the devolved Administrations and the Westminster Government.

The same argument applies to clause 6. The sign will be a matter for Welsh Ministers. Although the framework of the sign is set down in the Bill for Wales, because that was how they wished us to approach it, any changes would be a matter for Welsh Ministers. The hon. Lady asked the hypothetical question whether, if we changed the notices again, there would be adequate consultation or time for retailers. We are not planning on making life difficult for retailers. We think that the wording here is the right wording. I do not take it to be legalistic and technical in the way that the hon. Member for Windsor seems to think it is. It is the same wording that applies now, with the exception that rather than talking about people “under the age of 18”, it will say

“anyone born on or before 1 January 2009”.

I think that is pretty clear.

The wording on the signage was tested during the public consultation in January, and more than 70% of respondents supported it. Many respondents noted that we need to mirror the existing wording to ensure accessibility. Other products are more niche and were not deemed to be necessary on the sign, but I think most people understand what a tobacco product is, and a cigar is certainly a tobacco product. I commend the clauses to the Committee.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Clause 6 ordered to stand part of the Bill.

Clause 7

Ban on manufacture of snus etc

Question proposed, That the clause stand part of the Bill.

[Andrew Gwynne]

I am grateful for the opportunity to open this debate. Amendments 60 to 62, 70 to 72 and 77 to 79 would create a more lenient penalty regime for the offence of possessing the relevant oral tobacco product, for example snus, with intent to supply it to another person in the course of business in England, Wales, Scotland and Northern Ireland, by creating an exception to the maximum penalty that a person can face for committing that offence if it is their first offence.

The amendments would establish that someone who admits to committing an offence for the first time would be liable on summary conviction or indictment to a fine not exceeding level 3 on the standard scale, which is £1,000, or provide instead for a discretionary caution in England and Wales, a recorded police warning in Scotland or a conditional caution in Northern Ireland. That is lower than the current maximum penalties, which are, on summary conviction, imprisonment for up to six months in England, Wales and Northern Ireland and 12 months in Scotland, a fine, or both; or, on conviction on indictment, imprisonment for up to two years, a fine, or both.

The amendments would remove the distinction between summary conviction and conviction on indictment for first-time offenders, meaning that the severity of the offence committed would not be taken into account in those cases as it would under current provisions. In creating a first-time offence, the amendments would have a similar effect to amendments that we have already discussed, so, if the Committee is content, I will not repeat myself, as my rationale for asking the shadow Minister to withdraw her amendment remains the same.

[Dr Johnson]

This group of clauses and amendments all apply to snus, which we are trying to ban, so the first question is: what is snus? Snus is a tobacco product predominantly used in Sweden and, to an extent, in the USA. When the Health and Social Care Committee, which I was a member of in the last Parliament, visited Sweden at around the time the previous Tobacco and Vapes Bill was introduced, we saw shops with massive displays of different types, brands and flavours of snus, which came in small round pots similar to those that we see nicotine pouches in; they were mostly kept in the refrigerator.

Snus is produced using tobacco leaves, salt and alkalis such as sodium bicarbonate or sodium carbonate. The alkali is there to help the nicotine to be absorbed more easily into the mouth and therefore into the bloodstream of the person using the product. Producers also potentially add a flavouring. As we have seen in cigarette papers, flavourings are used to improve the palatability of tobacco products. The mixture of tobacco leaf, salt, alkalis and flavouring is ground up, steam-pasteurised to inhibit the growth of bacteria, and then supplied loose or in small pouches.

The loose form is a moist, powdery product, which I understand is rolled between one’s fingers to create a sort of cylinder shape known as a pinch. It is placed under the upper lip, where it is held for about 30 minutes while the nicotine is absorbed into the bloodstream. Its moist nature helps to facilitate the absorption of nicotine and makes the nicotine hit faster; it is absorbed more quickly than it would otherwise be.

The second way that snus can be supplied is in a small pouch resembling a very little teabag, which comes in two formats: original and white. The original version is a sachet of material that is kept moist and is brown in colour. Again, the moistness allows a quick release, but the tobacco product does not need rolling and pinching; it just needs putting into one’s mouth, and it stays in its little pouch. The white version is not in all cases white, but the genre is known as white snus. It has a milder taste and a slower release because the powder in the pouch is dry. The dryness means that one needs to get it moist in the mouth before it will dissolve across the membrane and give the nicotine hit, which means that the dry snus is a slower-release product than the original. The American snus is a lower moisture product, again provided in a variety of flavours to suit the customer.

Why did I and others not know what snus was? I am sure you are familiar with it, Sir Mark. This specific form of tobacco product has been banned in the UK for some time. It was banned by the Tobacco for Oral Use (Safety) Regulations 1992—I was still at school—and then EU tobacco products directive 2014/40 created a European-wide ban, which was incorporated into UK law by the Tobacco and Related Products Regulations 2016. The Committee might be interested to know that Sweden has a derogation specifically for snus under that EU regulation, so snus is still sold there, as I described.

Advocates of snus believe it is less harmful and causes less respiratory disease and less cancer than does an inhaled form of tobacco. They try to market it as an alternative to smoking that is less harmful. However, the evidence shows a risk of cancer, particularly of the cheek and gums. Perhaps that is not surprising, given where it is placed to be used. Oral squamous cell carcinoma, a form of cancer of the mouth, often occurs in the site at which snus is commonly placed. It has also been shown that snus causes increased blood pressure, particularly in females, and despite not being inhaled it can contribute to an increased rate of asthma.

Aside from all that, snus contains nicotine, which we know is addictive. Regardless of the form in which it is taken, it creates the addiction and cravings that rob people of the choice not to use the product, which the Minister spoke about so powerfully last week. It is important that we consider this carefully, because otherwise people will become addicted to snus as another form of nicotine.

--- Later in debate ---

[Dr Johnson]

My understanding—I am sure the Minister will leap to his feet to correct me if I am wrong—is that the Bill does not apply to nicotine pouches per se, because nicotine pouches do not contain tobacco. As I understand it, the brands we see in our local supermarket in similar round pots contain nicotine, and they are put in the mouth and absorbed in a similar way, but they are not tobacco products. As I read the Bill, clause 7 will not apply to them, and obviously they are not currently illegal, because they are widely sold.

[Andrew Gwynne]

I can easily clarify that point. The clause applies to relevant oral tobacco products, which are defined as tobacco products intended for oral use, not intended to be inhaled or chewed, and that consist wholly or partially of tobacco. It does not apply to tobacco-free nicotine pouches, which are sometimes informally referred to as snus; the Bill classes nicotine pouches as nicotine products.

[Dr Johnson]

I thank the Minister for clarifying that so comprehensively.

Clause 8 deals with the sale of snus. Clause 7 having made it an offence to manufacture snus, clause 8 bans the sale of snus, which it defines, in the same way as described by the Minister, as a “relevant oral tobacco product”. In wording that is slightly different from that in other clauses, clause 8 also describes the offence as not only to sell, but to

“offer or expose…for sale”.

I had to look up what that meant. To help the Committee, apparently, to offer or expose something for sale means to expose it to attract an offer of purchase from the public. Something is put in the shop window—in the same way as the bongs the Minister described in a shop window the other day—to be visible to a customer and the customer may then choose to make an offer for the purchase of the product, and the product is thereby exposed for sale. In essence, this provision will make putting these products in a shop window an offence.

I am interested to understand why the wording in clause 8 is different from that for all the other tobacco and nicotine products in the Bill, where that wording is not used. If the Minister could explain that, I will be grateful. Again, the defence offered by clause 8 is “all reasonable steps”, but I am not sure what such steps would be, so I will be grateful for clarification on that, too, please.

The penalties for disobeying clause 8 are quite severe. The penalty on summary conviction is

“imprisonment for a term not exceeding the general limit”

in a magistrates court, which is six months, potentially rising to 12 months based on what the Lord Chancellor has said over the past few months, or a fine—of how much, the Bill does not state, so perhaps the Minister could help with that—or both. On conviction on indictment, the penalty is

“imprisonment for a term not exceeding 2 years, or a fine, or both.”

That means that we have a contradiction within the Bill. For virtually any other tobacco or nicotine products that may not be sold, but are sold by an offender, the offender is liable for a fine at level 3, 4 or 5, but clause 8—the sale of snus, as distinct from all other tobacco products—creates an offence that carries a penalty of significant imprisonment. I am not saying that that should not be the case, but I am interested to understand the rationale for the difference, because, notwithstanding any devolution differences, the decision on what to do in England and Wales is clearly for this Government and this Minister.

Clause 9 concerns possession with intent to supply in the course of business of a “relevant oral tobacco product”, as has been defined in clauses 7 and 8. I am interested in what is meant by “the course of business”. If one looks at section 4 of the Misuse of Drugs Act 1971, where possession with intent to supply is most readily thought of, it is the intent to supply it to another person. However, does “the course of business” imply that money must change hands? If one had the intent to supply to another without being paid, would that not be in “the course of business” and therefore be legal? Also, does the word “business” itself imply a properly regulated business? It could not be a properly regulated business in so far as it would be an illegal sale. Does the Minister therefore make a distinction between the product being sold from a business premises as opposed to being bought down the pub from an acquaintance?

Amendments 60, 61 and 62 to clause 9 basically look once again at the principle of proportionality. If, for example, we were to prosecute someone for the sale of cigarettes to a 19-year-old born on 1 January 2009, and it was that person’s first offence, we would give them a fine—so why would we wish to consider imprisoning somebody at the first offence for selling snus? The crime would appear to be somewhat similar but the penalty is very different. I do not intend to push the amendments to a vote, although other hon. Members may wish to, but they are designed to provoke debate on the proportionality of different offences, and the inconsistency between the penalties for different offences that may appear to be very similar. Amendments 60 and 61 insert the phrase

“save if it is a first offence”

and amendment 62 says:

“A person who has admitted guilt of a first offence…is liable to a fine not exceeding level 3 on the standard scale or a caution.”

I will be interested in the Minister’s comments.

--- Later in debate ---

[Andrew Gwynne]

I am grateful to the shadow Minister for her comments. Although I appreciate her intention to establish greater leniency for first-time offenders, these amendments are not appropriate. Tobacco and vape offences must be taken seriously. We do not want to weaken the penalty regime for these offences, including offences relating to snus, by creating exceptions for first-time offenders or anyone who has committed these offences. We do not want to remove the ability of the court to issue a higher-level penalty, where that is viewed as proportionate for a particular case, for anyone convicted of these offences.

I turn to the shadow Minister’s comments on clauses 7 to 9, 56 to 58 and 73 to 75. Those clauses make it an offence to manufacture, sell or offer for sale, or possess with the intent to supply, a relevant oral tobacco product, such as snus, in England, Wales, Scotland and Northern Ireland. A relevant oral tobacco product is something intended for oral use—the clue is in the name: it is not intended to be inhaled or chewed and it consists wholly or partly of tobacco in powder or particulate form. That includes snus.

As the shadow Minister rightly pointed out, snus has been banned in the UK and the EU since 1992. Snus was banned as it was a novel tobacco product that is harmful to health. Snus contains harmful compounds that have been demonstrated to cause cancer, including cancers of the mouth. The manufacture of snus with a view to the product being supplied for consumption in the United Kingdom or through the travel retail sector is currently banned, as she rightly pointed out, under the Tobacco and Related Products Regulations 2016. These clauses re-enact that ban on manufacture but, unlike the 2016 regulations, do not limit it to supplying the UK or travel retail sector. In effect, that extends the ban to include manufacturing snus for export. That simplifies enforcement and reduces the possibility of such harmful products being available within the United Kingdom.

[Dr Johnson]

How many manufacturers in the UK are producing snus for export?

[Andrew Gwynne]

I will have to get back to the hon. Lady on that point. We will write to Committee members to update them, because I do not have that information to hand or in my mind.

As I was saying, the supply of snus for consumption in any part of the United Kingdom or through the travel retail sector is also already banned under the Tobacco and Related Products Regulations 2016, and these clauses recast the existing ban as a general ban on sale. The ban on possession of snus for intent to supply support the ban on sale, while preserving the current position under the Tobacco and Related Products Regulations 2016, which allows possession of snus for personal use.

Under these clauses, it will not be an offence to possess snus for personal use or for personal gifting to friends and family; this is not about criminalising individuals who possess snus for personal use. These clauses maintain and simplify the ban, in place since 1992, on the sale of a harmful tobacco product. The clauses also make the prohibition on snus more comprehensive and make the legislation clearer and more accessible. We have no intention of allowing a banned and harmful product into the United Kingdom market. I commend the clauses to the Committee.

The hon. Lady asks about “all reasonable steps”. As we have already discussed, it will be for the discretion of trading standards as to whether all reasonable steps have been taken. As we know, they take a proportionate approach to these matters, and we know that their current procedures work. There is no expectation that they will not work with the legislation before us.

What would prevent a retailer from just giving some of these products to a customer, rather than selling them, to get round the law? Well, there is “brand promotion”, which includes free giveaways anyway. That covers all tobacco products—so it covers that situation.

--- Later in debate ---

[Dr Johnson]

I thank the Minister for going through the questions thoroughly. I did not want to risk his getting to the end of his speech without answering the question of why snus is treated differently from other forms of tobacco. Is it merely a historical artefact?

[Andrew Gwynne]

The hon. Lady need not worry so much, because I have notes to clarify her points. Many people ask why we are banning snus but only gradually raising the age of sale for cigarettes, given that snus is less harmful than cigarettes. Consumption of any tobacco product is harmful. We heard that—[Interruption.]. We heard that very loudly and clearly from somebody upstairs, but also from the four chief medical officers. They made it very clear that there is no safe level of tobacco consumption and that tobacco is uniquely harmful as a product in whatever form it is consumed.

It is this Government’s policy to support people to quit all forms of tobacco. Snus has been banned in the UK and across the EU since 1992. It was banned because it was a harmful novel tobacco product at the time, and it still is. It was agreed to prevent this new harmful product from ever coming on to the market. Why on earth would we now decide to give the tobacco industry a get out of jail free card and allow a product that has never ever been allowed on the market in the United Kingdom to enter the marketplace, irrespective of the age of sale?

[Dr Johnson]

To be clear, I am not suggesting that it should be on the market, as the Minister well knows, because I support both helping people using tobacco to quit and preventing people from starting to use tobacco. I merely want to understand why there is a difference in treatment. On the basis of what the Minister has said, why not make the penalties for cigarette sales the same as the robust penalties that already exist for snus sales? It is his choice.

[Andrew Gwynne]

The hon. Lady teases me, Sir Mark, and I get her desire for scrutiny of the issue of fines and of the measures we will take to enforce these laws in England, where they stand at different rates to other parts of the United Kingdom. There are different rates for different products as well. If somebody wants consistency across the four nations and consistency of approach across all products, I get that—that is laudable—but we believe that the measures in the Bill are proportionate and workable. If they turn out not to be—if they turn out to be an incentive rather than a disincentive—Ministers can come back and can look at these things again.

On territorial extent, the earlier clauses refer to England and Wales and the later clauses to Scotland and Northern Ireland. As the shadow Minister pointed out to the hon. Member for Windsor, a full breakdown of the territorial extent of clauses can be found in the annexe of the explanatory notes to the Bill, which hopefully will then be able to clarify in his mind which bits are UK legislation, which bits are devolved legislation and which bits have territorial extent across England, England and Wales, Great Britain or the United Kingdom.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clauses 8 and 9 ordered to stand part of the Bill.

Clause 10

Sale of vaping or nicotine products to under 18s

--- Later in debate ---

[Andrew Gwynne]

It is good to see you back in the Chair, Sir Roger. Before addressing these amendments, the respective clauses and the proposed new clause, I want to make it clear that I will be using the generic term “vapes or vaping products” throughout to refer to vapes, e-cigarettes or nicotine vapour products. Likewise, I will use the term “nicotine products” to refer to consumer nicotine products, such as nicotine pouches. I am not referring to licensed nicotine-based medicines, which will not be further restricted by the Bill.

Under clause 10 it will continue to be an offence to sell a nicotine vape to a person who is under the age of 18 in England and Wales, and anyone who is found guilty of the offence will be liable to pay a fine of up to £2,500 if convicted. It is a defence if the person can prove they were shown what appeared to be an identity document belonging to the purchaser that showed they were over 18, or that they otherwise took all reasonable steps to avoid committing an offence. The clause also extends this age of sale restriction to consumer nicotine products and non-nicotine vapes, as we know that children are accessing those products. There are currently no age of sale restrictions on those products, and non-nicotine vapes can easily have nicotine solutions manually added to them.

Clause 59 refers to Scotland and extends existing offences in Scotland for selling vaping products to under-18s, proxy purchases on behalf of under-18s, and failure to operate an age verification policy related to vaping products, so nicotine products are also covered in those offences. By amending that legislation, we will align the approach across the United Kingdom, which is the wish of the devolved Administrations. The clause amends Scottish legislation by replacing the term “nicotine vapour products” with the term “vaping products”, thus aligning the definitions across the UK.

Another of the changes to Scottish legislation in this clause makes it an offence for any person managing or controlling a premises to have a prohibited vending machine available for use. This effectively maintains the existing prohibition in Scotland on vending machines selling vaping and tobacco products; indeed, it extends it to include machines from which nicotine products, herbal smoking products and cigarette papers can be purchased. Again, this aligns the approach across the UK.

Clause 76 applies similar measures in Northern Ireland to those in England and Wales, meaning that it will be an offence to sell a vaping or nicotine product to a person in Northern Ireland under the age of 18, thereby expanding current Northern Ireland legislation to cover all vaping products and nicotine products. Anyone convicted of the offence will be liable to a pay a fine of up to £5,000. All these measures for England, Scotland and Northern Ireland will come into force six months after the Bill receives Royal Assent, to give retailers time to introduce them.

These clauses will play an important role in ensuring that we can tackle youth vaping successfully. They provide businesses with certainty as to who they may legally sell products to, and they reinforce our health advice that children should never vape.

However, the amendments tabled by the shadow Minister would undermine that approach by creating a more lenient penalty regime for the offence of selling vaping or nicotine products to someone under age. They would establish that someone who admits to committing an offence for the first time would either be liable on summary conviction to a fine not exceeding level 3 on the standard scale—that is, a fine of £1,000—or be given a caution instead. Level 3 is one level lower than the level 4 fine of £2,500 that someone who commits this offence is liable to under the current legislation.

[Dr Johnson]

The Minister knows me well enough to understand that I would never seek more lenient penalties for those selling vapes to children; there is no excuse for selling vapes to children. However, I am concerned that there may be sales in the online marketplace that are not adequately covered by the regulations as they are currently drafted. The principle of new clause 10 was to ensure that such offences are properly covered, so I would be grateful for his reassurance in that regard.

[Andrew Gwynne]

I will come to that; I am just spelling out why I am concerned about the consequences of the shadow Minister’s proposals in the amendment, because they would lead to more lenient penalties for those committing an offence for the first time than they are liable to under the current legislation. Again, like the amendments that we have already discussed, the effect would be to create a first-time offence, and if the Committee is content, I will not repeat myself, as the rationale for my asking the shadow Minister to withdraw the amendment remains the same.

The shadow Minister’s new clause 10 would introduce an offence in England and Wales for businesses selling vaping products online without applying an age verification policy. It would therefore create a requirement for businesses selling vaping products online to take steps to establish and ensure that any customer attempting to purchase those products online was above the age of 18.

Although I am incredibly sympathetic to the shadow Minister’s intentions, as I said earlier, the Bill already makes it an offence in England and Wales to sell a vaping or nicotine product to anyone under the age of 18. As with in-person retail, online retailers must take all reasonable steps to avoid selling vaping products to anyone under age. Alongside the Bill, we are exploring how we can enhance online age verification to further tackle online under-age sales. The office for digital identities and attributes, which sits within the Department for Science, Innovation and Technology, is creating a framework of standards and governance, underpinned by legislation, which will enable the widespread use of trusted digital identity services. We are working closely with DSIT to consider how its work to enable the use of digital identities can best support retailers selling tobacco and vapes, whether online or in-person. It is for those reasons that I commend clauses 10, 59 and 76.

[Andrew Gwynne]

The hon. Gentleman should panic not; I had not quite come to the end of my contribution. I was merely saying that it is for those reasons that I commend clause 10, clause 59 and clause 76 to the Committee.

[Dr Johnson]

rose—

[Andrew Gwynne]

If the hon. Lady will allow me to first answer her hon. Friend, it may well be that I answer her thoughts in the course of answering him. The hon. Gentleman is absolutely right that there is a difference here between our approach to tobacco and to vapes. The hon. Lady—the shadow Minister—has, rightly, always been, and will continue to be, a doughty campaigner for a nicotine-free generation and for a smoke-free generation. That may well be where we end up at some stage in the future. However, we believe that the measures in the Bill are entirely appropriate and proportionate. We are not planning to raise the age of sale for vapes in a similar way to that for tobacco; let me explain why.

Tobacco is a uniquely harmful product. No other consumer product kills two thirds of its users. It is therefore entirely appropriate to create a smoke-free generation, as we are seeking to do in this legislation, and to gradually phase out tobacco so that it is a thing of history. Although vaping is not harm-free—I will come on to the harms in due course—it is less harmful than smoking and, currently, we do not believe that a generational age of sale restriction on vapes would be an appropriate response to the current evidence in relation to health harms. Instead, the Bill contains strong measures to stop the promotion and the blatant advertising of vapes to children, and so bring about definitive and positive change to stop future generations from becoming hooked on nicotine.

It may well be, over the course of the coming years, that greater evidence emerges about the harms of nicotine. Lots of studies of vaping are taking place and it may well be that we have to take further action; that is why the measures in the Bill are permissive. The tobacco industry has often, after having one route closed off to it, sought an alternative route to maintain market share and market presence. It may well be that the vaping industry employs exactly the same tactics—all the evidence so far would suggest that it does. That is why the measures in the Bill are not just proportionate for the here and now but future-proof, so that Ministers can come back to Parliament, on a whole range of issues, and seek to close off other routes.

I would hope that, with that explanation, the hon. Member for Farnham and Bordon understands that there is a very big difference between tobacco and vaping. However, we reserve the right to return to Parliament and to utilise the powers in this Bill, should we be granted them, to ensure that, if there is evidence of harms, we can immediately respond to those.

--- Later in debate ---

[Dr Johnson]

I thank the Minister for clearly explaining that children should never vape. In fact, if children are smoking and wish to quit, they can get support from their GP and others, but they should not use vaping, because vaping is bad for children.

To take the Minister back to my question about new clause 10, before he took the two previous interventions, he said that he is working with DSIT to provide regulations and legislation that would cover new clause 10 and ensure that online sellers of age-restricted products are obliged to check a person’s age before selling them. Will he advise when he expects such regulations to be available? Will they be in time for his smoke-free generation in a couple of years’ time?

[Andrew Gwynne]

I absolutely hope that the measures will be worked on at pace and will be available for that. Officials from the Department of Health and Social Care are working closely with colleagues in DSIT to ensure that these matters are included in the online age verification legislation that it is seeking to introduce.

A couple of other points were raised in the course of the debate. On the issue of fines and why there are inconsistencies, I do not wish to over-labour the point, but the maximum fines that the shadow Minister quoted are consistent with existing tobacco and vapes legislation. We believe they are proportionate to the severity of the offences. There is a bit of a pushmi-pullyu argument here, because on the one hand we have had amendments that seek to have more lenient penalties, and on the other, arguments for harsher penalties. We believe that the current fine levels in England are appropriate, which is why we are remaining with them. It is for trading standards to take a proportionate approach to enforcement, deciding the appropriate action to take for a given case to achieve compliance based on the evidence before it.

On TikTok and advertising, I understand that the Advertising Standards Agency has issued an enforcement notice to vaping companies and brands instructing them to stop any advertising on TikTok. To date, it has reported around 300 posts, approximately 80% of which predated the notice to TikTok for removal.

On the issue of enforcement with physical sales, and online sales with age verification, it was interesting that in the evidence session we heard from National Trading Standards that it has undertaken test purchasing both in brick and mortar premises and online and that the failure rate in brick and mortar premises was 26%, compared with 10% online. We do not want any breaches of the law, but that puts into context that the current issues tend to be on the ground rather than online—although we need to cover all bases. I ask the shadow Minister to withdraw her amendments and proposed new clause.

[Dr Johnson]

I am grateful to the Minister for providing the extra information. Amendments 63, 64, 81 and 80 were designed once again to provoke debate on the coherency of the penalties across the different clauses of the Bill. Sometimes the penalties are different for the same offence and, inexplicably, sometimes they are the same for different offences that perhaps one would expect them to be different for. However, I will not press those amendments to a vote, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.

Clause 11

PURCHASE OF VAPING OR NICOTINE PRODUCTS ON BEHALF OF UNDER 18S

--- Later in debate ---

[Dr Johnson]

Amendments 65 and 66 apply to clause 11. In line with other Opposition amendments tabled to various clauses of this Bill, they seek to provoke debate on the coherency of the penalties. They encourage the Minister to look in detail at those penalties before Report—specifically, to consider the differences between the shop worker, the shopkeeper and the shop owner in terms of the level of fine required, and also to consider the individual who inadvertently commits an offence on one occasion versus the person or company that deliberately and repeatedly flouts the law and require different handling.

Amendment 65 amends clause 11 to add at the end of page 6, line 5,

“, save if it is a first offence.”,

while amendment 66 inserts:

“A person who has admitted guilt”—

that is, a person who has owned up—

“of a first offence under this section is liable to a fine not exceeding level 3 on the standard scale”.

I think I have explained what those are for.

Clause 11 makes it a criminal offence for a person aged 18 or over to purchase, or attempt to purchase, a vaping or nicotine product on behalf of someone who is under the age of 18—essentially stopping adults from buying vapes for kids. Clearly, buying things for children that are so potentially harmful to them is not the action of a responsible adult.

If a person is charged with this offence, they can defend themselves by saying that they had no reason to suspect that the person they were buying for was under 18. It is not really clear to me when that sort of a situation would occur. If someone is under 18, it should be fairly obvious that they are quite young. Any responsible adult who knew the child would have an idea of how old they were, and any responsible adult who did not know the child would surely guess that there was a risk in buying something for someone who looked young, in case they were under 18 and incriminated themselves. I understand why the defence is there, but I am not really sure how it would be used. The Minister may be able to enlighten us further.

A person found guilty in relation to this offence is liable to a fine up to level 4 on the standard scale, which amounts to £2,500. This clause is very important, because we must stop children getting access to vapes. Popular culture tells us that vapes are very accessible to children. For example, we were all glued to our screens—I know we were in the Johnson household—watching Luke Littler, the recent BBC young sports personality of the year, win the PDC world darts championship. It was fabulous to see someone so young achieve such an amazing feat.

Luke Littler won half a million pounds, which is a wonderful thing for that young gentleman, but he reportedly said that he would celebrate by vaping. Of course, he is actually a 17-year-old young man, despite his great achievements. He is a sports prodigy, a national hero, and a wonderful example to young people of what can be achieved at a young age, but presumably, until he turns 18 very soon, he will need someone else to buy vapes for him. That will be illegal under the new law.

On a more serious note, we know through the various different reports that on county lines, where people are selling drugs, they are often giving vapes to children as a way of enticing them into feeling that they are favoured by those adults. They are using children’s addiction to nicotine and desire for further vapes, and for access to further vapes, as part of a grooming process to get them into dreadful situations with county lines. Clause 11, which prevents children’s access to vaping and nicotine products via a proxy adult, is a very sensible measure that I will support.

[Andrew Gwynne]

I am grateful to the shadow Minister for her support. Clause 11 means that it will be an offence for a person aged 18 or over to buy, or attempt to buy, a vaping or nicotine product on behalf of a person who is under the age of 18 in England and Wales. The clause replaces the existing restrictions, which only apply to nicotine vapes.

Similarly, for Northern Ireland, clause 77 means that it will be an offence for a person aged 18 or over to buy, or attempt to buy, a vaping or nicotine product on behalf of a person who is under the age of 18 in Northern Ireland. The clause replaces the existing restrictions that only apply to nicotine vapes and extends them to non-nicotine vapes and nicotine products such as nicotine pouches. Anyone convicted of the offence would be liable to a fine of up to £5,000. Both of these clauses contain the defence for those charged that, if they can prove they had no reason to suspect the person they were buying the product for was under 18, that would be considered.

--- Later in debate ---

[Dr Johnson]

I thank the hon. Member for his intervention. I will come to amendment 96 and the mental health aspect shortly, but I will deal with the clause first, which makes sure that these vending machines are not available. At the moment, one can buy nicotine products in a vending machine where those exist. As I said, the ASH survey showed that 6.6% of 11 to 17-year-olds who currently vape have access to vapes through a vending machine, so this is happening in the UK already. The hon. Gentleman will have heard me say earlier that, until this Bill passes, it is not illegal to sell nicotine products to children. Some responsible retailers have a voluntary scheme for not selling to under-18s, but it is not a legal requirement. Some irresponsible sellers do sell vapes to children.

Paragraph 782 of the impact assessment says:

“There is limited evidence presented on the number and locations of vape vending machines, however it is suggested by online retailers that they are currently predominantly placed in locations such as nightclubs, bars and pubs. It is anticipated that”

without this legislation

“the market will develop further and vape vending machines will become more prevalent in other locations such as supermarkets, train/bus stations and other locations accessible to under-18s.”

In my mind’s eye, I remember recently seeing a vape in a vending machine alongside sweets; I just cannot quite remember where it was, but it was certainly somewhere that was easily accessible to people.

The aim of the clause is to protect children and to ensure that vending machines—commonly found dispensing food and drink in child-friendly establishments such as canteens and leisure centres, and easily used by young people—are not available. The machines protect anon—anonymity; I might have to put my teeth in, Sir Mark—

[Andrew Gwynne]

It is catching!

--- Later in debate ---

[Dr Johnson]

I thank my hon. Friend for his intervention, which goes to the principle of advertising, and whether there needs to be an exemption for medical advertising of vaping as a stop smoking tool by health professionals, for example in doctors’ surgeries, where it may also be visible to child patients. That is not really the aim of clauses 13 and 14, which focus on the display of products in shops. They are less about how the products are advertised and more about where they are displayed and how visible they are to someone shopping.

To some extent, my hon. Friend has a point about how we convey the message to smokers that vaping devices are items they can use to help them quit smoking—a message given by the chief medical officer—and about the distinction between that advertising and the sort of advertising that sees sports stadiums and sports shirts emblazoned with the brands of vaping companies, such that young children watching their heroes on the pitch, playing football or rugby, see vaping as a good thing. We will come to that later, but it is distinctly different from clauses 13 and 14.

At the moment, the legislation most relevant to where products are displayed is probably the Tobacco and Related Products Regulations 2016, known as the TRPR, which brought EU tobacco products directive 2014/40 into law. The regulations, which are now in the form of retained EU law, set standards for nicotine vapes, including limits on nicotine strength, bottle and tank sizes, and rules on packaging and advertising. But when it comes to the display of vape products, there are no specific regulations. They are openly displayed in stores, in large and small shops, both household names and individual retail outlets. They are also displayed in outlets that we might not expect. I noticed that the place I took my son for a haircut was selling both haircuts and vapes, and that a shop in the local town that repairs mobile phones and sells second-hand devices also sells vapes. The number of places that sell vapes and display them in their shop window is remarkable.

The Department of Health and Social Care has expressed concern about the lack of regulation, warning that children can easily see and pick up vapes due to them being displayed within aisles close to sweets, and on accessible shelves and display towers on the shop floor close to children’s eye level. A particular concern to me—and no doubt to many others in the Committee—is the visual similarity between a vape display and a shelf of sweets. Vapes are often displayed in an array of eye-catching colours. It is not uncommon to see them in a rainbow, with a range of sweet and fruity flavours on offer, including specific sweet brand names like Skittles, Starburst and Sour Patch Kids. The way they are sometimes presented as a safe alternative to smoking—which we understand that they are for smokers—can mislead consumers into thinking they are risk free, which is concerning considering that they contain nicotine and other harmful chemicals. I have also noticed a fashion for an increasing number of products to be advertised as pure, fresh, natural and organic, potentially to give the impression that they are less damaging than they are.

Finally, I have not seen this raised before, but I would like the Minister to consider that the fact that these highly addictive products are so easily accessible on the shop floor and at children’s height makes it easy for children to pick them up and walk out with them, particularly if they want to avoid being asked for ID by the shopkeeper. Putting them behind the counter where they are less accessible to children may reduce that temptation.

Clauses 14, 61 and 79 relate to similar regulations in Wales, Northern Ireland and Scotland. I do not intend to go through them and repeat my arguments.

[Andrew Gwynne]

I reassure the shadow Minister that the measures in clauses 13 and 14 will regulate only the display of pricing, not the actual prices. We are not yet in the realms of fixing prices for products—I hope that reassures the hon. Member for Windsor, too.

On engagement with the tobacco industry and the vape industry, the UK is party to the World Health Organisation framework convention on tobacco control, so we have an obligation to protect the development of public health policy from the vested interests of the tobacco industry. We take that commitment incredibly seriously and, in line with the requirements of article 5.3 of the FCTC, we summarise the views of respondents with disclosed links to the tobacco industry when responding to consultations.

With respect to the display of vapes, we know—and the shadow Minister has expressed very powerfully—that research on vape packaging has shown that reduced brand imagery can decrease the appeal to young people who have not previously smoked or vaped, without reducing the appeal of vapes to adult smokers. That is why I believe the measures in clauses 13 and 14 are appropriate and measured, and will have the outcomes that both the shadow Minister and those of us on the Government side of the Committee desire. I commend the clauses to the Committee.

Question put and agreed to.

Clause 13 accordingly ordered to stand part of the Bill.

Clause 14 ordered to stand part of the Bill.

Clause 15

Free distribution and discount of products

Question proposed, That the clause stand part of the Bill.

Tobacco and Vapes Bill (Fourth sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Thursday 9th January 2025 Public Bill Committees

[Andrew Gwynne]

It does, for the reasons that I have set out. I thank my hon. Friend for pointing to the impact assessment, because it sets out a very clear reversal of the current situation, in which the costs of tobacco to society, the individual, the economy and our health and care services are massive. In the future, that situation will be reversed—it will become a positive, not a negative—because people will be healthier and living longer. They will not be living with the comorbidities that are a direct consequence of tobacco use. They will be free from addiction. They will actively participate in the economy. That is why we are moving to smoke-free, rather than just shifting the age of sale to a fixed point and continuing to give tobacco companies that conveyor belt. If we did so, people would eventually reach 25 and the tobacco companies would be able to target them again—maybe not in as great a number, but we would have switched the conveyor belt back on.

I want that conveyor belt stopped for the next generation. That is what the last Bill did, to be fair, and it is what this one does. It is about protecting future generations from becoming addicted to nicotine and carrying the horrible burden of disease that is a direct consequence of all tobacco products. Breaking the cycle of addiction and disadvantage and allowing people to live healthier lives—that is true freedom. Let us be clear: there is no freedom in addiction. There is freedom in never being able to be sold tobacco and having a genuinely smoke-free UK. For that reason, I ask the shadow Minister not to press these Liberal Democrat amendments.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

I certainly do not want to press the amendments to a vote, but it may be that other members of the Committee do.

--- Later in debate ---

[Dr Johnson]

Thank you, Mr Dowd, for the guidance, and I thank my hon. Friend the Member for Windsor for his intervention.

The age of the customer is important. The principle of existing tobacco legislation is that it protects children under the age of 18 from tobacco. This legislation will protect some adults from tobacco as well.

I have a question for the Minister about the offence. If we get 10 years down the line and we cannot sell tobacco to people under the age of 28 or 26, depending on when legislation takes effect—people in their 20s—we will have one group made up of children, who are not allowed to buy tobacco, and another group made up of adults who are not allowed to buy tobacco. I care deeply about the protection of children, but I believe that adults have a right to choose risk to an extent, where it does not harm others within society. Does the Minister think that, when we get to that point, selling tobacco to a child is a more serious and aggravating factor than selling it, perhaps inadvertently, to a 25-year-old when the age limit is 26? It is being sold to an adult who has the capacity to make a choice—although an illegal choice—about risk, but for the shopkeeper, at that point, selling to a 15-year-old would be a more serious offence.

[Andrew Gwynne]

I am grateful to the hon. Lady for putting that question, because proportionality is key here to how trading standards will approach the fines regime. The reality, however, is that the law will be clear as to what the age of sale will be. If a retailer has knowingly sold tobacco products—against the law—to someone who it is clear should not have been sold to, trading standards may take a different view than they would were the retailer’s defence that they had every reason to believe that the person was the age they claimed to be.

[Dr Johnson]

That is not quite what I meant. I guess the question is this: if someone has sold tobacco products to a person of 45 who should not have them because they are now illegal, that is an offence—it is breaking the law as set out in the clause—and would see a penalty applied—[Interruption.] Well, it may see them liable for a penalty—let us put it that way. If the retailer sold that same tobacco to a 14-year-old, would the Minister not agree about the difference? Selling it to a 45-year-old and a 14-year-old might be illegal—the same crime on the face of the Bill—but the penalties for selling tobacco to a minor should be greater than those for selling it to an adult.

[Andrew Gwynne]

We have heard very clearly from trading standards. The current practice is that trading standards officers across the four jurisdictions of the United Kingdom, which have different penalty regimes in place, apply a degree of proportionality. There is nothing in the Bill that changes that situation. Trading standards will always approach this in a proportionate and responsible way. However, as legislators setting out a clear desire to have a smoke-free generation across the UK, we must be clear that there is a borderline where one side is legal and the other is illegal, and that there are maximum penalties for breaking the law, as there are for a whole range of things. I do not want to differentiate within the smoke-free generation by saying, “Well, you can be a little bit smoke-free because you’re an adult now, but you should be absolutely smoke-free because you are kids.” From 1 January 2009, smoke-free is smoke-free.

[Dr Johnson]

I understand the Minister’s point. However, my point was that even in a world where things are illegal, we do have aggravating and mitigating circumstances in law. I suggest that, particularly as the rolling generations get older, selling to a child becomes an aggravating offence. I ask the Government to consider that.

[Dr Johnson]

My hon. Friend makes a valid point. I suggest, so that I do not try the patience of the Chair, that we discuss that when we get to clause 1 stand part, because it speaks to the substance of the clause rather than the substance of these amendments.

[Andrew Gwynne]

To be very clear, the answer is no. But I will explain why later.

[Dr Johnson]

As the Minister is in the mood for answering questions, would he like to intervene to say whether the guidance on who specifically will be liable for the fines has been written and published?

[Andrew Gwynne]

I will happily get back to the shadow Minister on that. On tobacco fines for under-age sales, it is up to trading standards to make a sensible decision—I emphasise the word “sensible”—about whom it seeks to fine. It depends on the circumstances behind the offence. When it is proxy sales, it is the person who buys the product on behalf of the minor who will be fined, rather than the shopkeeper or the business.

[The Chair]

Order. For the smooth running of the Committee, it would be helpful—rather than having the table tennis that is going on—if Members could ask questions and the Minister answered them when he winds up, and not on this individual level, if possible.

[Dr Johnson]

Thank you, Mr Dowd. That concludes my remarks on this group of amendments.

[Andrew Gwynne]

I am grateful to the shadow Minister for bringing these amendments before the Committee. That allows us to have a genuine debate on the nitty-gritty of the Bill and on the enforcement and implementation of the measures that the Government are bringing forward.

As the shadow Minister outlined, the amendments would create a more lenient penalty regime for the offence of selling tobacco, herbal smoking products or cigarette papers to someone who is under age in England and Wales, Scotland and Northern Ireland. They would create an exception to the maximum penalty a person can face for committing one of these offences—if it is the person’s first offence, that is. They would also establish that someone who admits to committing an offence for the first time would be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale—that is £1,000—or it would instead provide for a discretionary caution in England and Wales, a recorded police warning in Scotland and a conditional caution in Northern Ireland. That is one level lower than the level of fine that someone who commits this offence is liable to under current legislation in England and Wales and Scotland, which is level 4—£2,500 pounds. It is two levels lower than is currently the case in Northern Ireland, which is level 5—£5,000.

I appreciate that the intention of the hon. Member for Sleaford and North Hykeham is to establish greater leniency for first-time offenders, but the amendment is not necessary. My hon. Friend the Member for Cardiff West rightly pointed out that National Trading Standards told the Committee only two days ago, on 7 January, that when enforcing tobacco and vape legislation as it currently stands in England and Wales, it takes an entirely proportionate approach, taking the appropriate action to achieve compliance. Typically, that starts with the issuing of warning letters, which is entirely proportionate for first-time offences. As we heard only two days ago, sending warning letters is often incredibly effective in ensuring future compliance without the need to escalate to harsher penalties such as prosecution and the associated criminal fines, which are subsequently issued by a court on conviction. That proportionate approach is also taken by trading standards officers in Scotland and by district councils in Northern Ireland when enforcing tobacco and vape legislation.

There is absolutely nothing in the Bill or in what we heard from trading standards officers to suggest that anything will change. Trading standards will continue to do the job it is currently doing. It will use the proportionality it is currently using—nothing will change. The approach it takes to decide who to fine will continue. That will be entirely dependent on the case and the evidence in front of trading standards officers, as well as the circumstances. If, as is currently the case for most retailers, it is their first offence, they will get a warning letter. Only if the issue continues will that not be the case. The measures in the Bill do not change one iota how trading standards enforces tobacco control in the four nations of the United Kingdom. That is why it is right that we debate this issue and clarify it not just for the Committee but for the House and those following these proceedings. However, the amendments are not needed, because nothing will change.

As a Government, we have a smoke-free ambition. We take the view that tobacco is uniquely harmful. We want to ensure that the message gets out there loudly and clearly that we are serious about this smoke-free generation policy, so we do not want to weaken the existing penalty regime for tobacco and vape offences. What message would it send out if we watered down the measures as they are today? That would say that we are not taking smoke-free seriously.

I want to make sure that we carry on with the measures in the Bill. Offences must be taken seriously, and it is important that existing consequences are not weakened for first-time offenders or anyone else who commits these offences. We trust trading standards officers—the professionals—to do their job, as they do it day in, day out, week in, week out, and year in, year out, and to apply common sense, proportionality and, ultimately, the law of the land. Therefore, we do not want to remove the ability of the court to issue higher-level fines, where that is viewed as a proportionate penalty. The courts may well view fining certain rogue traders as a proportionate penalty in a particular case. For that reason, I ask the shadow Minister to withdraw the amendment.

[Dr Caroline Johnson]

The Minister’s response was very interesting. However, could he respond further to a couple of the questions that were asked? First, is it intentional that there is a difference in the level of the fines?

[Andrew Gwynne]

There are differences across the four nations of the United Kingdom, and those differences are a consequence of the devolution settlement that this Parliament agreed a quarter of a century ago. Of course there are divergences across the jurisdictions, because the four jurisdictions are able to legislate their own penalty regimes and have done so. The measures in the Bill do not change that situation.

We have crafted the Bill after full consultation, and with full agreement and full consent, across the three devolved jurisdictions and the UK Government, which legislates for England in this matter. That is why we do not seek to have a common penalty regime across the UK; we allow the Welsh, the Scots and the Northern Irish to develop their own penalty regimes. However, the law is common across the United Kingdom, and it will be for the trading standards authorities in those jurisdictions to apply the law. It will be for the courts in those jurisdictions to apply the penalty regime that appertains to those jurisdictions.

[Dr Johnson]

The Minister has somewhat contradicted himself. On the one hand he says that he does not agree with the amendments because he wants to leave the courts free to issue a bigger fine to a rogue trader, and I have sympathy with that argument. But why, in Northern Ireland, should a rogue trader be subject to a higher fine?

[Andrew Gwynne]

Because that is what Northern Ireland has decided.

[Dr Johnson]

If Northern Ireland has decided that it wants higher fines and if, as the Minister has said, he wants to take the idea of a smoke-free generation seriously, why, given that the law as it stands in England and Wales is for him to decide—certainly in England, as he is the Minister with responsibility for public health—does he not want the fines in England to be as high as they are in Northern Ireland?

[Andrew Gwynne]

We are in the bizarre situation where the shadow Minister has gone from wanting to water down the penalties to now wanting to make them higher, in line with Northern Ireland. We have been very clear that we are continuing the existing fine regime for tobacco control in England. We want trading standards officers to continue the proportionality they currently display when they enforce breaches of tobacco control. The Bill changes nothing in the current situation, beyond the fact that there will be a different age of sale that determines whether the law has been broken.

The measures in the Bill have been crafted in a way that suits the desires and the ambitions of the four nations of the United Kingdom, recognising that, in some parts of it, measures are already in place and that, in some parts, the penalties will be different from those in other parts. However, the underlying aim is the same: we expect law enforcement to continue in the way it does, and we expect the situation regarding fines to be as it is set out in current legislation.

[Dr Johnson]

If I understand the Minister correctly—he can correct me if I am wrong—he is saying that the reason why the fines are different between England, Wales and Northern Ireland is that that is the way they are at the moment.

[Andrew Gwynne]

indicated assent.

[Dr Johnson]

Would he like to see the fines in England rise to the same level as those in Northern Ireland, or is he content with them where they are?

[Andrew Gwynne]

This is becoming a question and answer session—it is all slightly like an evidence session. That is a decision for future Governments; it is not what we intend in this Bill, which is clear on what the penalty regime will be. I cannot guarantee that some future Government will not decide to alter the penalty regime. That may be a Liberal Democrat Government, a future Labour Government or even a future Conservative Government, when the Conservatives get their act in order, although the differences in the Committee suggest that may be way after the next generation are affected by the Bill to a considerable extent. They will be free to do that, because nothing done by this Parliament can bind future Governments. The Bill sets out the penalty regimes as they are for England, Wales, Scotland and Northern Ireland—and yes, there are differences, because that is devolution.

[Dr Johnson]

I am grateful to the Minister for his clear answers. The purpose of the amendments is to provoke debate on the proportionality of the punishments in place and to encourage the Minister to provide further guidance on who he expects to be punished—the shopkeeper or the shop—and to consider the levels of penalty across the UK. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

New clause 3—Age verification policy—

“(1) A person commits an offence if the person—

(a) carries on a tobacco, herbal smoking product, vaping product or nicotine product business, and

(b) fails to operate an age verification policy in respect of premises at which the person carries on the tobacco, herbal smoking product, vaping product or nicotine product business.

(2) Subsection (1) does not apply to premises (“the business premises”) from which—

(a) tobacco products, herbal smoking products, cigarette papers, vaping products or nicotine products are, in pursuance of a sale, despatched for delivery to different premises, and

(b) no other tobacco, herbal smoking product, vaping product or nicotine product business is carried on from the business premises.

(3) Before the specified date, an “age verification policy” is a policy that steps are to be taken to establish the age of a person attempting to buy a tobacco product, cigarette papers, a vaping product or a nicotine product on the premises (the “customer”) if it appears to the person selling the tobacco product, cigarette papers, vaping product or nicotine product that the customer may be under the age of 25 (or such older age as may be specified in the policy).

(4) After the specified date, an “age verification policy”—

(a) in relation to a tobacco business or herbal smoking product business, is a policy that steps are to be taken to establish the age of a person attempting to buy a tobacco product, cigarette papers, herbal smoking product or cigarette papers on the premises (the “customer”) if it appears to the person selling the tobacco product, cigarette papers, herbal smoking product or cigarette papers that the customer may have been born on or after 1 January 2009 (or such earlier date as may be specified in the policy);

(b) in relation to a vaping product business or nicotine product business, is a policy that steps are to be taken to establish the age of a person attempting to buy a vaping product, or a nicotine product, on the premises (the “customer”) if it appears to the person selling the product that the customer may be under the age of 25 (or such older age as may be specified in the policy).

(5) In relation to times before the end of 2033, the reference in subsection (4)(a) to the customer being born on or after 1 January 2009 (or such earlier date as may be specified in the policy) has effect as a reference to the customer being under the age of 25 (or such older age as may be specified in the policy).

(6) The appropriate national authority may by regulations amend the age specified in subsection (3) or (4)(b).

(7) The appropriate national authority may publish guidance on matters relating to age verification policies, including, in particular, guidance about—

(a) steps that should be taken to establish a customer's age,

(b) documents that may be shown to the person selling a tobacco product, cigarette papers, herbal smoking product, vaping product or nicotine product as evidence of a customer’s age,

(c) training that should be undertaken by the person selling the tobacco product, cigarette papers, herbal smoking product, vaping product or nicotine product,

(d) the form and content of notices that should be displayed in the premises,

(e) the form and content of records that should be maintained in relation to an age verification policy.

(8) A person who carries on a tobacco, herbal smoking product, vaping product or nicotine product business must have regard to guidance published under subsection (7) when operating an age verification policy.

(9) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(10) Regulations under subsection (6) are subject to the affirmative resolution procedure.

(11) In this section— “the appropriate national authority” means—

(a) in relation to England, the Secretary of State, and

(b) in relation to Wales, the Welsh Ministers,

“herbal smoking product business” means a business involving the sale of herbal smoking products by retail,

“nicotine product business” means a business involving the sale of nicotine products by retail,

“the specified date” is 1 January 2027,

“tobacco business” means a business involving the sale of tobacco products by retail,

“tobacco, herbal smoking product or vaping product business” means a business which involves any one or more of the following—

(a) a tobacco business,

(b) a herbal smoking product business, or

(c) a vaping product business,

“vaping product business” means a business involving the sale of vaping products by retail.”

This new clause introduces a requirement on businesses to operate an age verification policy covering steps to be taken to establish the age of persons attempting to buy tobacco, herbal smoking, vaping/ nicotine products, or cigarette papers. It reflects provisions in place in Scotland to be amended by the Bill.

Amendment 68, in clause 50, page 25, line 38, at end insert—

“(2A) In section 4A (Sale of nicotine vapour products to persons under 18) insert—

(a) in subsection (5), at end insert “, save if it is a first offence.”

(b) after subsection (5) insert—

“(5A) A person who has admitted guilt of a first offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale or to a recorded police warning.””

This amendment prevents penalties for a first offence pertaining to the sale of nicotine vapour products to persons under 18 in Scotland being a fine not beyond level 3 and provides for a discretionary recorded police warning.

Amendment 69, in clause 50, page 26, line 26, at end insert—

“(ba) in subsection (7), at end insert “, save if it is a first offence.”

(bb) after subsection (7) insert—

“(7A) A person who has admitted guilt of a first offence under subsection (1) is liable to a fine not exceeding level 2 on the standard scale or a recorded police warning.””

This amendment prevents penalties for a first offence pertaining to a failure to operate an age verification policy in Scotland being a fine not beyond level 2 and provides for a discretionary recorded police warning.

Clause 50 stand part.

Clause 68 stand part.

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[Andrew Gwynne]

The hon. Lady makes an important point. This is not speculation; we have seen it in action. In the period immediately after the indoor smoking ban, for example, the levels of cardiovascular disease in this country plummeted, so we know that tobacco control has almost immediate beneficial health outcomes for those who are at risk from smoking related illness.

[Dr Johnson]

I thank the Minister for supporting the view that clause 1 will reduce the number of people who smoke. We can argue about how it will reduce the number of smokers and how many people will stop, but either way we know that there will be a significant reduction in the number of smokers. That will significantly benefit people’s health—particularly young people, thanks to the rolling age process. As I have mentioned, it will benefit the health of children—even those as yet not conceived, never mind born—which is important.

The Minister talked about the effect on the NHS and social care. Smokers are likely to need social care 10 years earlier than their non-smoking counterparts. He gave figures in the billions of pounds for the cost to the NHS. Nearly half a million appointments a year are caused by smoking. If we were able to stop that, not only would we have a healthier and happier population who are not miserably addicted and unwell, but we would be able to concentrate NHS resources on other conditions and perhaps reduce waiting lists and waiting times.

The other key benefit of clause 1 relates the economy. Smokers are more likely to die early, which has an economic effect. They are more likely to take time off work as they experience chronic illness. It is estimated that smoking-related absenteeism costs the economy £5 billion annually. When smokers are hospitalised or have illness, they tend to have longer recovery times and more prolonged periods off work than their non-smoking counterparts.

Nicotine is an addictive substance. Nicotine cravings can be experienced by smokers and, as we heard in our discussion with teachers about children and vaping earlier this week, it can disrupt their work day and lead to lack of concentration and reduced focus.

Turning to the environmental impact, smoking is bad for the environment in several ways. Everywhere outside, we can see cigarette butts lying on the floor; that is pollution. The tobacco industry has an effect on the environment right from the get-go, including through deforestation, use of fossil fuels, and pollution caused by waste disposal. Tobacco cultivation requires large amounts of land and water, and the waste of cigarette butts contributes to hazardous litter that harms the ecosystem. Clause 1 will reduce the amount of tobacco consumed, which will reduce the number of cigarette butts and the amount of deforestation, and will therefore reduce waste.

The cultivation process is of particular concern. Tobacco is cultivated in around 125 countries, particularly in low-income regions and places such as Brazil, India and China. It is resource intensive and requires chemicals and pesticides that endanger the environment and public health. It is often grown through monoculture farming, which reduces biodiversity and increases the need for chemicals. It also uses up vast quantities of water, with some estimates suggesting that one smoker’s habit for 50 years could deplete almost 1,400 cubic metres of water, the equivalent of—

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[Andrew Gwynne]

indicated dissent.

[Dr Johnson]

The Minister is shaking his head. So what is a reasonable step? Unless one is to ask everyone for ID, the first step will be to decide whether to ask the customer in front of them for ID. That step will be, in essence, that shopkeeper or shop worker assess the person’s age.

Research shows that people are usually off by about eight years in their estimates of people’s ages by face alone. In fact, some research shows that if groups of people are shown a face, and the face that they are shown immediately before was a younger face, they will pick a younger age for that second person. If they are first shown an older face, they will pick an older age for that same person. That suggests that who the customer came in with, or who the previous customer was, may have an effect.

At the moment, we are asked to conduct a Challenge 25 check on a customer, but is it as easy to check the age of a 40 or 41-year-old as it is to check the age of someone under 25, or to tell whether someone is young or relatively young? The evidence seems to suggest that people who are close to 25 are quite good at telling whether people are under or over 25, and people who are close to 41 are apparently better at telling whether people are 40 or 41. It depends on age, and there is also an effect of sex and ethnicity.

Given that the Minister rejects new clause 3 tabled by the hon. Member for City of Durham on a policy on checking ID, he does not want people to have a policy on when to check, he does not want people to check everybody and he just indicated that he does not want people to rely on what they think based on looking at people, what reasonable steps would he expect to take place? The Government need to provide further guidance on that.

In the last Parliament, the hon. Member for York Central (Rachael Maskell) tabled an amendment for a nicotine-free generation. She made the point that we have a rolling age of tobacco products, herbal smoking products and cigarette papers, so why not have one for all nicotine products? We know that nicotine is addictive and that the industry will evolve to try to get people hooked to a different form of nicotine product—that may be less or more harmful than tobacco, but it will still be addictive. Their choices will still be taken away, and they will still be having something that they do not want, which costs them money and potentially makes them poorer as a result. If it were to become apparent later that these items were particularly harmful, and one wished to do another rolling ban, one could end up in a situation where there is an age for sale of alcohol, fireworks and all sorts of other things, and two rolling ages with two different dates—one for tobacco, herbal products and cigarette papers, and another for vaping and other nicotine products such as nicotine pouches.

Many of the amendments to the Conservative Government’s very similar Bill were included by this Government in their Bill, so I wonder whether the Minister could comment on why that particular amendment from a Government Member was not included.

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[Andrew Gwynne]

Thank you, Mr Dowd. At least, in taking your deep breath, you will not be passive smoking—it is a healthier deep breath than it might otherwise be. I thank all hon. Members for their input into the debate on these amendments and new clauses, as well as clause stand part. I will try to address the points that have been made.

First, I will clarify my previous contribution. The police do of course enforce the law on smoking in cars with children; we were talking about the retail side of things, and the police do not have a role in enforcement in retail—I just wanted to make that clarification.

[Dr Johnson]

Will the Minister therefore clarify something for the record or for anyone listening to proceedings? If one is suspicious that a particular retailer is selling tobacco products to children or, in the fullness of time, to those who should not be receiving it, to whom do they report it?

[Andrew Gwynne]

These are matters for trading standards. Trading standards is the enforcement authority. If people have a concern today about a retailer in their area that is potentially selling tobacco or alcohol products to people who are under age, they should report it to trading standards. Trading standards will investigate, and may even do test purchasing as one of the tools at its disposal. As we discussed previously, should that test purchase unfortunately show that someone was sold a particular product under the legal age, appropriate action can be taken within the framework of law, and that will continue to be the case under the Bill. For a first offence, that might be a written letter, or it might be amplified through the court process, depending on the severity and the particular situation.

I want to dwell briefly on the comments of the hon. Member for Farnham and Bordon. He is right that many young people now do not smoke; certainly, they do not smoke in the numbers they did when I was a young lad, when my peers took up smoking. That is a good thing, and as a consequence of the past two decades of tobacco control measures, we have got to the place we are in, but let us not be complacent. The hon. Member for Windsor is keen on international comparisons, and we have seen increases in youth smoking in the USA and Australia because there has not necessarily been the concerted tobacco control that we want to see. I do not want to see smoking prevalence increase in the United Kingdom as an unintended consequence of saying, “Well, we have sorted it with the kids. It’s all right.”

I had the privilege of being interviewed by LADbible. I did not even know what LADbible was, but now I am aware, because I ended up with not one story, but a set of four stories off the back of this Bill. It is incredibly keen on reporting on this Bill—no doubt it is listening in to the proceedings. One of the questions I was asked was whether I was concerned that young people are again being bombarded with images on social media of film stars and influencers—whatever the trendy term is for the great and the good these days—smoking. As in the images that we used to see in magazines and newspapers, it looks sexy again, and I am concerned about that. My answer was that it is often best for politicians not to give advice to kids, because they think, “Yeah, whatever—you would say that,” but, as a father and a grandfather, my advice to the next generation is that there is nothing sexy about having yellow fingertips. There is nothing sexy about having a cough. There is nothing sexy about clothes stinking. There is nothing sexy about bad breath.

Cigarettes and tobacco are not sexy, but we cannot be complacent that we have fixed the problem. That is why we need to stop that conveyor belt so that the tobacco industry of today knows that the customer base of today is it. We are coming after the industry, because I want to beat the addiction that the hon. Member for Windsor talks about. I want to ensure that those millions of smokers in the United Kingdom, whether in Scotland, Wales, Northern Ireland or England, have every opportunity to give up, to break that addiction and to be free. That is real liberty.

[Dr Johnson]

In the impact assessment, it says that 95% of people cannot give up through willpower alone. Will the Minister congratulate my right hon. Friend the Member for Basildon and Billericay (Mr Holden), who told me that over Christmas he has managed to give up smoking using willpower alone? This is the first time that he has not been smoking.

[Andrew Gwynne]

I do not want to tempt fate or for the right hon. Gentleman to end up smoking again, but that is great. Anybody who manages to break free of that addiction and to do so on their own—through willpower alone—is incredibly tough. That is why the previous Government committed to funding for smoking cessation services and introduced things such as swap to stop. This Government are continuing that investment into stop smoking services, and we are determined that anybody who wants to give up will have everything that we can throw at them to help them off their addiction. However, for the next generation, that is it—we have stopped that conveyor belt, because we know that the tobacco industry will target them wherever we put the borders. The measures in clause 1 are so important.

The shadow Minister asked why 2009. I will let the cat out of the bag: not everything that the right hon. Member for Richmond and Northallerton (Rishi Sunak) did was bad. The previous Tobacco and Vapes Bill showed real leadership by him. Announcing it at the Conservative party conference did not just take Conservatives such as the hon. Member for Windsor by surprise; it took a lot of us by surprise, because we had been calling for precisely the New Zealand model after Javed Khan had reported back. We think that 2009 is appropriate.

I get the urgency of this issue, and I share the urgency outlined by the shadow Minister to bring the date forward, but we have to be real here. As the hon. Member for South Northamptonshire said, we want these measures to be workable and we want this Bill to be a success. The lead-in time is slightly shortened, because the Bill was parked due to the general election and had to be reintroduced, but it gives us an appropriate lead-in time for these big changes, particularly in our engagement with the retail sector and in getting some of these measures right for the retail sector. We are working with the sector on guidance and on how we allay some of the concerns that have rightly been raised in the course of this debate. Subject to Royal Assent, the measures in the Bill will come into force on 1 January 2027. That is an appropriate, proportionate and measured way of reaching our ambition of getting to smoke-free and working with industry to get us there. That is why we have gone for 2009.

The shadow Minister mentioned bongs and other paraphernalia. This is an issue that really gets on my nerves, because it is possible to walk down Strutton Ground, the street just at the side of the Department of Health and Social Care, and see vape shops there that not only have all the colourful packages of vapes, but what I consider to be drug paraphernalia, in their windows. That is the result of a loophole. Under drugs legislation, which of course is the remit of the Home Office, such paraphernalia can be displayed by shops so long as it is not sold for the use of drugs consumption.

We all know what bongs are for, and I have raised this issue with the Minister for Policing, Fire and Crime Prevention, who shares my view that we need to crack down on it. I asked my officials whether we could end up with a perverse situation, whereby the measures in the Bill mean that, subject to consultation, the display of vapes—all those colourful packages—would be replaced by vapes in plain packages and in cabinets locked away, not to be seen and with the shop window bare of them, but instead the shop window could be full of bongs. That would be a real perversity, where it would not be possible—rightly—to see tobacco or vape products in the windows of these establishments, but it would be possible to see drugs paraphernalia in them instead.

My officials assure me that the only reason that such shops can sell bongs, rather than display them, is because bongs can also be used to smoke tobacco products. That is the loophole. Given that we are bringing within the scope of the Bill a number of things that can be used to smoke tobacco and banning their display, that means—thank God—that the measures in the Bill will get rid of that awful loophole. That will mean that shops around the country, including shops just around the corner from the Department of Health and Social Care, will no longer be able to show drugs paraphernalia in their windows.

[Dr Caroline Johnson]

The Minister is making a very powerful and impassioned speech; I get the impression that he finds this situation frustrating. I wonder whether he will put a clause in the Bill that specifies bongs and other such paraphernalia, because, although a bong may be a product for using tobacco with, it is not a tobacco product, is it? So which clause will ban them?

[Andrew Gwynne]

We believe that a bong is a tobacco product, because the only reason shops are able to treat bongs as not being drugs paraphernalia and therefore to sell them is for the consumption of tobacco. There are all the other things that are addressed in the Bill, such as pipes and so on, and bongs are no different. Therefore, we will make sure that the loophole that currently exists when it comes to drugs paraphernalia is closed.

Bongs are not explicitly dealt with in the Bill, but the hon. Lady raised them as an issue and they are a real bugbear of mine. As I am sure she can tell, dealing with them is something that I have been championing, both with officials in the Department of Health and Social Care and with my colleague the police Minister. I am assured—indeed, I am reassured—that a consequence of the measures in the Bill will be that bongs will no longer be able to be displayed for sale in shops.

[Dr Johnson]

The Minister is making a very impassioned point and I am grateful to him for doing so. Given his great passion for this area and the fact that, as the Minister for Public Health, he has his hands on the levers of power, so it is up to him—to govern is to choose—why has he not chosen to put in a specific mention of these products? It is up to him to do so if he wishes.

[Andrew Gwynne]

Because we do not need to. The measures in the Bill cover these bongs. For example, although it is not a direct tobacco product, clause 45 gives Ministers the power to cover devices used to consume tobacco, which is the power to say, “Well, you’re selling these bongs. We know it’s for drugs, but you’re selling these bongs on the basis that it is to consume tobacco.” Therefore, they are no longer covered because clause 45 gives Ministers the power to do that.

I will try to rattle through because I know Members are very keen to get to other parts of the United Kingdom for which transport is not easily available. Apologies if I miss anything. I will try not to take interventions as a consequence—I hope Members will forgive me for that. On whether the rules apply to snuff in Parliament, I do not know the answer off the top of my head; perhaps I should. I have been around here for such a long time that I remember the implementation of the indoor smoking ban. My recollection is that Parliament was not covered because it is a royal palace, and we got a bit of flak for that. Rightly, the parliamentary authorities decided that they would apply the law within the Palace of Westminster, even though the law did not apply to it, and that is why the Smoking Room is smoke-free. It may well be that snuff goes the same way, but I imagine those will be matters for the House authorities.

On reasonable steps and what they are, retailers may check other forms of ID, not just the forms outlined in the Bill—for example, that may include veterans ID cards. We are very clear that other forms of ID can be shown, as long as the retailer can show that they have taken all reasonable steps to avoid selling to a person under age, and that is the important thing.

On tourists and the potential for the President of the United States not to be able to attend a G7 if he wants to have a cigarette, the duty-free rules are not changing. Those coming into Great Britain from outside the UK are allowed to bring an amount of tobacco for personal use, which is 200 cigarettes or 250 g of tobacco, although there is no personal allowance for those under 17. The President of the USA can bring 200 cigarettes with him to a future G7—that is not an issue.

On enforceability, as I have said, trading standards is responsible for enforcing tobacco and vape sales, and district councils are responsible for regulations at a local level in England, Wales and Scotland. In Northern Ireland, Border Force and HMRC also have an important role to stamp out opportunities for criminals in the illicit tobacco trade. We are working closely with retail associations and will develop guidance with them to support the successful implementation of the enforcement measures in the Bill. That is a really important point, and it leads into the point made by the shadow Minister on why we are not bringing the measures of the Bill further forward. We want that lead-in time to get these measures right so that retailers are clear on both what those measures are and how we can work with them to get it right.

The Bill introduces a new defence in England, Wales and Northern Ireland for retailers accused of selling to someone under age, if the retailer can prove that they were shown an identity document that shows the customer was above the age of sale. The Bill sets that out, but as I have said, other forms of ID are not unreasonable.

On protecting retail staff from abuse, we are working really closely with retailers and will use the long lead-in time to support them in preparing for and implementing these changes. We will not stand for violence and abuse against any shop workers. Everybody has the right to feel safe on the job and this Government will introduce a new offence of assaulting a retail worker to protect the hard-working and dedicated staff who work in the stores.

Tobacco and Vapes Bill (Third sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Thursday 9th January 2025 Public Bill Committees

[Dr Johnson]

The amendments do not stand in my name, and they are not amendments with which I agree, but they relate to a very important part of the Second Reading debate that goes to the heart of the principles behind the Bill. I have moved the lead amendment so that the debate can be heard in full and so that hon. Members can establish for themselves whether they wish to support the amendments.

I will refer to these amendments as the Maguire amendments, if that helps, as they were all tabled by the hon. Member for Epsom and Ewell, who is not on the Committee. It is, of course, the Whips who choose who goes on the Committee—[Interruption.] Sorry, can you hear me?

[Andrew Gwynne]

I can hear you.

--- Later in debate ---

[Dr Johnson]

My hon. Friend makes an important point. Some people are averse to carrying ID—it is not something that bothers me personally, but I am aware that for some people it is a sticking point. In a previous debate before the election, the former Member for Norwich North, Chloe Smith, made the point that not all adults will be affected by this legislation, but only a relatively narrow band of them.

The last time I was carded for ID, I was 38. I was not buying the typical basket of a 17-year-old; I was buying flowers—orchids—and a bottle of champagne for someone’s housewarming, as well as some strawberries, because she had phoned to ask me to get some when I was on the way, as she was running out at the housewarming party. I was IDed, so I was not able to buy the champagne for her, because the supermarket would not let me. That was disappointing for both of us, but I accepted the fact that if ID could not be shown and they genuinely believed that I looked under 25, that was the law and it had to be accepted. That is not universally the case, and I am aware—as we heard in evidence—that retailers can sometimes receive significant verbal and occasionally violent abuse when they ask for ID in that way.

[Andrew Gwynne]

Will the Minister give way?

[Dr Johnson]

I keep getting promoted!

[Andrew Gwynne]

The shadow Minister is having a good morning, having not had a particularly great evening last night. With no disrespect to the hon. Member for Windsor, who made this point in his intervention, by the time that the age of sale is legally his age, we hope that smoking prevalence in that age group will be next to zero, and therefore it will not be an issue.

[Dr Johnson]

I thank the Minister for his intervention, although I am not sure what he is implying about the age of my hon. Friend the Member for Windsor—

Tobacco and Vapes Bill (Second sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Tuesday 7th January 2025 Public Bill Committees

[Dr Johnson]

Q The last time I was asked for ID —when I was trying to buy a bottle of champagne, an orchid and a punnet of strawberries in a major supermarket—I was 38, so it would seem we are not very good at working out how old people are, or some people are not. We are going to ask people to decide not just if someone is younger than 25, but potentially if they are younger than 45 or 35. Is that going to be difficult for people to do?

Professor Linda Bauld: I think we also heard this from previous witnesses, but as the legislation comes into place, it is really not about 34-year-olds versus 35-year-olds; it is about acting on the age of sale gradually, so that we are de-normalising tobacco use and stopping the start at an earlier stage.

By the time we get to the difference between the 34-year-old and the 35-year-old, you will have far lower smoking rates than we do at the moment. The modelling for the legislation that was carried out by the University of Sheffield for the Department of Health and Social Care suggests, as I think Hazel Cheeseman said earlier, that by 2040 we will have reduced the smoking rate among those aged 14 to 30 to 0.4%—down from 0.6% by 2030—so I think you are going to see very low rates. To go back to Challenge 25, age verification is something that we can build in, and, irrespective of how old you are, actually seeing proof of age will support this.

[Andrew Gwynne]

Q Welcome, Professor Bauld. What impact have tobacco control measures had on smoking rates over time? What impact do you expect this Bill to have?

Professor Linda Bauld: Thank you for that question, Minister. I have been working in tobacco control for almost 30 years, and the impact has been phenomenal. If you look back to the late 1940s and 1950s, 80% of men smoked in the UK. We have driven that down gradually over the years. We started to measure it in about 1974, and the level of smoking in the UK is now about 12% or 13%—the second lowest in Europe. The reason that we have achieved that is in line with what is being proposed in this legislation. It is about using comprehensive measures and implementing them over the years to regulate what I often call the four p’s: the product, the place, the price and the promotion. You are taking action on potentially all of those—including price, with the levy that is coming in, or the tax on vapes.

We have made a lot of progress, but we are not there yet. I think what you will hear from my clinical colleagues later is that in line with keeping that firm focus on prevention, as you are doing in this Bill, we also need to keep the focus on cessation and particularly on marginalised groups, deprivation, mental health and so on. The key is comprehensive tobacco control. Keep doing it, and that is what the Bill is adding to.

--- Later in debate ---

[Dr Johnson]

Thank you, that is a really helpful answer. We know that vapes are very difficult to dispose of and to recycle.

[Andrew Gwynne]

Q I have a very similar question to the shadow Minister’s. She asked whether you are confident that trading standards will have the resources to enforce the measures in this Bill. My question is: are you confident that trading standards will have the right powers to enforce the measures in this Bill?

Lord Michael Bichard: I think we do feel we will have the right powers, based on the fact that we are already doing some of this quite successfully. We seized something like 2 million vapes last year; we carried out 400,000 test purchases—which is how we check whether or not the legislation is being enforced—and we seized, I think, 19 million illegal cigarettes. So in a way, this is not new stuff for us; it is just bigger. We have the powers and we use them quite effectively. We know that HMRC thinks we are pretty effective in relation to tobacco. We like to think we are a good delivery agency.

Wendy Martin: There has been a lot of work in the development of the Bill and the associated Department for Environment Food and Rural Affairs legislation around the ban on single-use vaping products with officials, so we have worked together with them to try to get this to a good place in terms of enforcement powers.

--- Later in debate ---

[Dr Johnson]

Q Will this Bill help with that?

Matthew Shanks: Yes—very much so.

[Andrew Gwynne]

Q The shadow Minister is absolutely right to mention highlighter pens. You mentioned pen drives. There are examples of vapes that look like mobile phones. There are examples of vapes that are concealed within the hood strings of hoodies, so kids sucking on their hood strings are often vaping. It is clear that the industry is being very malicious in its approach to marketing vapes, which is why the Bill introduces a ban on advertising and sponsorship. Do you think that will have a material impact on dissuading children and young people from vaping?

Matthew Shanks: I think it will, but for some it will not unless it has the education behind it as well. I also think it is too easy for children to purchase vapes. It is all very nice to think of shopkeepers not allowing children to buy vapes or tobacco if they are under age. I am not denigrating them, but we have instances, for example, of a year 9 child who had a loyalty card for a vape shop. She is 13 years of age—she did not look 18—yet she is being sold that at the local shop. You go in and talk to the local shop and they say that no, of course they have not sold it to her, and then there is conflict there. We need to look at the legality of it and sterner punishment, for want of a better word, for people who are found to be selling.

The drop box online purchasing industry also needs to be looked at. I do not know how, but again, we know that people purchase vapes from those places. The education side is for parents, because parents and older brothers and sisters think it is safe and will therefore give them a vape. The Bill will help, but there are other things that could help as well.

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[Dr Johnson]

Q You have explained that they are very different roles: in one, there is a level of safety that is checked; in the other, the manufacturers just notify that they are following the basic level of rules. When a customer buys a product, do you think that the suggestion that it is MHRA-approved leads the customer to believe that there is some evidence that it has been medically checked in some way by some higher competent authority, when that actually has not happened? In fact, would it be better for some other organisation to do this work, or for there to be a different name when the lower-level process has taken place?

Dr Laura Squire: I do not have any evidence of that, but it does worry me. We are an organisation that is about healthcare products, medicines, medical devices and blood products—that is our business—and it concerns me that people might think that vapes are safe. When I talk about risk-benefit, what I mean is that vapes are safer than tobacco; I do not think that anyone disagrees with that. However, vapes are not safer than nothing—and we do not actually know how unsafe vapes are, because there is a need for much longer-term study and understanding of the damage that they could cause.

My feeling is that, yes, there is potentially a misleading position with an organisation like ours, which is basically about healthcare products, running this scheme.

[Andrew Gwynne]

Q Welcome to the Committee, Dr Squire. I will ask two questions specifically about the notification scheme, which you very helpfully outlined to the Committee in your response to the shadow Minister. First, what do you think are the most pressing issues with the current notification scheme that you would like to see addressed in a new registration scheme?

Dr Laura Squire: I think we heard earlier about the different elements you need to make something work—licensing, regulations and registration—and I agree with that. I think it was also mentioned that registration is important to allow compliant businesses to check that the product that they have is compliant.

The significant problem with the notification scheme at the moment is that there is not an easy way to take something off the register once it is already on it. That is a problem, because if people are checking the current register, there might be something on it that we would quite like to take off but cannot.

There are powers to take things off the shelves, so if there was a recall issue, that could be dealt with. However, the main problem, or the primary thing in the Bill that I think needs to change, is having powers to take things off the register. Obviously, we must consult on the regulations themselves, but we welcome that change.

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[Dr Johnson]

Q Okay, but you do not have specific evidence that compares flavours. Say the popular flavours are cherry and raspberry—you do not have anything that says which is safer.

Professor Sanjay Agrawal: No.

[Andrew Gwynne]

Q Welcome to the Committee, and I thank you both for your time. In answer to the shadow Minister, you have outlined some of the early impacts of vaping that we are seeing in patients. But I am interested in smoking—tobacco is a killer. Following on from the evidence this morning from the CMOs from across the UK, what impacts of smoking do you see in your patients—I include second-hand smoking in that analysis—and what difference do you think the measures in the Bill will make?

Professor Steve Turner: Smoking is bad whether you are an active smoker or a passive smoker. Sadly, there are lots of children who still actively smoke, but there are many hundreds of thousands of children who are exposed to second-hand smoke in the home. There is undeniable evidence that that exposure is harmful. I do respiratory paediatrics. Asthma admissions are very common and are clearly associated with exposures.

We can look at natural experiments. For example, in Scotland we had the “Take it right outside” campaign, which was a smoke-free homes initiative. After that, there was a reduction in the number of children coming into hospital. When we brought in the ban on smoking in cars in Scotland, there was another reduction. On that whole-population basis, there is a lot of evidence of benefit to the population, particularly children, from smoking interventions. There are also benefits to the birth weight of children.

There is no doubt that there is a huge amount of harm from second-hand smoke, and anything that reduces the population’s exposure to second-hand smoke will benefit the whole population. As we heard earlier from Matthew, the headteacher, it is part of a package, and it is part of education as well. Smoking continues to be something that children should not do. Children should never vape. Children should never smoke. They continue to do so, and anything that we as a responsible society can do to stop that is to everybody’s benefit.

Tobacco and Vapes Bill (First sitting)

Debate between Andrew Gwynne and Caroline Johnson

Committee stage
Tuesday 7th January 2025 Public Bill Committees

[Dr Johnson]

Q Smoking is a huge cause of cancers. Do you expect that this Bill will reduce the number of cases of cancer and increase the age of people who get cancer across the country?

Dr Ian Walker: First, thank you very much for the opportunity to be here. I start by thanking Parliament for boldly introducing this Bill; it is genuinely world leading. I have spoken to organisations across the world that are envious of the position we find ourselves in. That is a very important question, and the answer is absolutely yes—I think this Bill will be very important in reducing the number of cancers caused by smoking tobacco. We know that there is no bigger thing we could do to actually influence that going forward for the next generation and generations thereafter.

As you have heard this morning, we know that we still have 6 million people smoking across the UK, and we know that we can expect hundreds of thousands of cases of cancer caused by smoking over the term of the next Parliament. As we move towards a truly smoke-free generation over the next 20, 30 or 40 years, we will absolutely expect to see the number of cancers caused by smoking—and, alongside that, the number of other illnesses associated with smoking—reduce.

[Andrew Gwynne]

Q Can you tell us about the evidence of the impacts of second-hand smoking on cancer in your case, Dr Walker, and on asthma and lung conditions in your case, Sarah? What difference do you think that the measures outlined in the Bill will have on those conditions?

Dr Ian Walker: To start with smoking and cancer, the links between passive smoking and cancer, particularly lung cancer, are very clear. It is fair to say that there is less evidence around different scenarios that you might predict through this Bill, such as different outdoor environments and so on, but that is more because those studies have not necessarily been done. It is an important point to make that there is an absence of evidence, rather than evidence of absence.

You heard from the CMO of England this morning that if you can smell cigarette smoke, you are exposed to it. The direct risk, then, is linked to how long you are exposed to it, how concentrated the environment is, how close you are to it and so on. Nevertheless, passive smoking is harmful—not just for cancer, but for vulnerable people with many other conditions as well—so we are very much supportive of the introduction of smoke-free places and the ability to restrict people smoking in particular outdoor spaces.

Sarah Sleet: When it comes to people with lung conditions, second-hand smoke is incredibly important; it is a well-known, severe risk factor for people with lung conditions. About one in five of us in the UK will experience a lung condition—there are around 7 million people with asthma and about 1.6 million people living with chronic obstructive pulmonary disease. Those are two major conditions that are profoundly affected by second-hand smoking, and are clear risk factors in terms of deaths from asthma and people being hospitalised with exacerbations, so it is incredibly important that we deal with the issue of second-hand smoking. People said earlier that there is no choice about second-hand smoking, and yet it profoundly affects those with lung conditions. It is incredibly important that we ensure that we protect those vulnerable people as far as possible.

When it comes to the discussion about how far we should go in terms of smoke-free and vape-free places, we would consider going further than what has been suggested already and looking at other areas to make smoke-free. I know there has been discussion about hospitality and trying to balance the potential economic impact that has been talked about if we make the outside of hospitality places smoke-free. However, we think, given the balance between the public health impact and what we have seen with smoke-free indoor spaces and its impact on business, we could go further and should go further, there.

Draft Medical Devices (Post-market Surveillance Requirements) (Amendment) (Great Britain) Regulations 2024

Debate between Andrew Gwynne and Caroline Johnson

Tuesday 26th November 2024 General Committees

[Andrew Gwynne]

I thank the hon. Lady for her valuable contribution. These regulations introduce clearer, more robust requirements for post-market surveillance of medical devices, to improve patient safety and to signal a crucial shift in the way in which we manage medical devices in Great Britain.

The hon. Lady raised some important points. First, on the MHRA and whether it is appropriately resourced to cope with the likely increase in incident reporting as a result of this regulatory change, let me reassure her that the measures introduced in this instrument should not have a significant impact on MHRA capacity. Its systems and processes to provide regulatory oversight for vigilance reporting are already in place. The measures within this statutory instrument are expected to increase the volume of safety data reported to the MHRA. However, the accompanying improvements to data quality will support automation and reduce burdens associated with data analysis. To ensure that the MHRA’s systems for vigilance reporting are fully equipped to handle the new reporting requirements for manufacturers, we will verify system-readiness through comprehensive testing and validation ahead of the date of application of these regulations.

As the regulator for the whole United Kingdom, the MHRA is committed to protecting patient safety while enabling a regulatory environment in which the life sciences sector is able to innovate and to launch new medical products in the interests of public health across the UK. Contrary to the hon. Lady’s assertion that the regulatory burden will be increased and will therefore squash innovation, the opposite is the intention of this Government. The intention is to ensure that there is a clear regulatory framework throughout the United Kingdom—without having the disparities that we have at the moment—and to ensure that better, smarter use of the data will be available. The closer scrutiny of the efficacy of these medical devices will encourage innovation in medtech and in life sciences.

[Dr Caroline Johnson]

The Minister is saying that more regulation will encourage innovation. I am not sure I agree with that premise, but does he accept that these new regulations will lead to a higher regulatory burden on people wanting to set up medtech companies in the UK than in the EU or elsewhere?

[Andrew Gwynne]

We could get into a theological debate about the benefits or otherwise of regulations, but this statutory instrument will provide certainty and clarity across all four nations of the United Kingdom. It will provide a known framework for medtech and life science companies operating, or wishing to operate, in the UK. I see this as a good piece of secondary legislation to bring about the certainty that we want to give companies wishing to operate, or which are operating, in the United Kingdom, and to set up a common framework across our four nations. I see that as good. Regulatory divergence with another part of the United Kingdom is not, in my mind, good for business—particularly where a company wants to operate on both sides of the Irish sea.

On patient confidentiality and the cost estimates for the NHS, I hope the hon. Lady will forgive my having to write to the Committee on that point because the tablets of stone have not yet reached me from Mount Sinai.

On the hon. Lady’s question on innovation being reversed and whether people have long enough to prepare, we believe that the measures in the statutory instrument do give people long enough to prepare—not least because many of those companies are already operating in the parts of the United Kingdom that the instrument will bring our regulation in line with. Therefore the extra capacity that is needed in the system will not be to the detriment of the measures in this statutory instrument.

[Dr Johnson]

Parts of the UK are working to EU regulations, but does the Minister recognise that the statutory instrument he is bringing forward will introduce into the whole of the UK market, regulations that are not currently present in either the UK or EU markets?

[Andrew Gwynne]

I recognise that we are not only bringing Great Britain in line with Northern Ireland but adding other patient safety measures. If the hon. Lady is saying—I hope she is not—that the result of the Cumberlege review is that we do nothing in this area to improve the issues highlighted by it, she is within her powers to oppose these measures. However, we think not only that ensuring regulatory consistency throughout the United Kingdom is the right thing to do, but that this statutory instrument gives us the opportunity to start to put right some of the shocking, appalling things that we know have happened, as highlighted by the Cumberlege review. That is what these measures seek to do.

This Government are committed to the delivery of a framework for medical device regulation that prioritises patient safety—that is the crucial thing that we are seeking to do—and that gives patients access to the medical devices they need, and ensures that the United Kingdom remains an attractive market for medical technology innovators. We have an obligation to patients and the public to maintain the highest standards of safety and efficacy for the medical devices they rely on. These regulations are an important first step to deliver this framework, and they place patient safety at the forefront. They will enable not only the MHRA but the whole health system to better protect patients.

I am grateful to the hon. Lady for her contribution, and to Members across the Committee for considering these regulations today. I hope they will join me in supporting these regulations, so that we have consistency across the UK and put patient safety at the heart of medtech and life sciences.

Question put and agreed to.

Oral Answers to Questions

Debate between Andrew Gwynne and Caroline Johnson

Tuesday 15th October 2024 Commons Chamber

[Andrew Gwynne]

I have every sympathy with the case that the hon. Gentleman has put forward. This Government want to see a shift of health services from hospital to community, from analogue to digital, and from sickness to prevention, but these decisions are not taken through inertia; they are taken because of the Government’s inheritance from the Conservative party. We have had 14 years of running down our health services, with needless reorganisations that have destroyed and set back the progress that the last Labour Government made on the NHS. This Government will fix the NHS, including in the hon. Gentleman’s local area, but he has to recognise that the root cause of many of the problems faced by Members across the Chamber lies at the feet of the former Secretary of State and the last Government.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

We have heard about the challenges facing Whipps Cross hospital. The Secretary of State’s decisions to pause capital projects across the country and put them under review has caused worry and uncertainty for staff in hospitals nationwide. Can he say when the review will be completed, so that we have certainty about when things will go ahead?

[Andrew Gwynne]

The review will be completed when all the information has been analysed. The hon. Lady should not just be a little more patient; she should be a little more apologetic for the fact that the Government found a hospital rebuilding programme that was not worth the paper it was written on, because the ultimate paper we needed—the cash—was not there.